Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
“Although determining whether notice provided is reasonable depends upon the circumstances of each case, we have not identified a single case where less than twenty-four hours' notice of a hearing impacting an individual's parental rights was upheld as reasonable.” - The Second District Court of Appeal in Florida in Ferris v. Winn, 242 So.3d 509 (Fla. 2d DCA 2018). In this case, a father’s right to communicate with his children was suspended after he received less than 24 hours notice of a hearing on the issue.
The mother alleged the father was alienating their children from her by telling them not to obey her and by posting hateful things about her on social media. She filed an emergency motion requesting the court to prohibit him from communicating with the children. On the same day the motion was filed, the mother sent notice to the father and his attorney of record around 3 pm a notice of hearing for the following day at 10:30 am.
Neither the father nor any attorney representing him appeared at the hearing the next day and the court entered an order suspending the father’s timesharing and contact with his children and ordering him to undergo a psychological evaluation. The father appealed, arguing less than 24 hours notice of a hearing violated his due process rights. Although the appellate court acknowledged “that a court may enter an order granting a motion for temporary custody without affording notice to the opposing party where an emergency exists, such as ‘where a child is threatened with harm, or where the opposing party plans to improperly remove the child from the state,’” the court reasoned no such emergency existed in this instance. It further reasoned, “Less than one day's notice to retain counsel and prepare for an evidentiary hearing on the mother's verified motion is not reasonable.”
Therefore the court found the father’s due process rights were violated and reversed the order with instructions to the trial court to hold an evidentiary hearing with proper and fair notice to both parties. To protect your due process rights, contact a Miami family law attorney and learn about what is required in your case.