Posted by Nydia Streets of Streets Law in Florida Child Custody
Relief not requested in pleadings in a Florida family law case generally cannot be granted by the court. This is because due process requires that each party be given fair and reasonable notice of what he or she must defend against in the proceeding. This was an issue in the case Hernandez v. Hernandez, 4D20-2145 (Fla. 4th DCA March 9, 2022).
In this post-divorce case, the former husband filed a petition for relocation or in the alternative for modification of the parties’ parenting plan. He alleged that there had been a substantial, material and unanticipated change in circumstances. While the parties’ original divorce was pending, the former wife moved out of county, and the court at that time determined it was in the best interest of the children to remain in the primary care of the former wife. Since the entry of the final judgment, neither parent had moved. Accordingly, the trial court denied the former husband’s petition for relocation but it did grant his petition for modification. In granting his petition, however, the court decreased the former husband’s summer time-sharing, a request that was not made by either party. The former husband appealed.
The appellate court upheld the denial of the relocation petition, holding that by the plain terms of the relocation statute, the court could not grant relief because neither party had relocated from his or her residence since the entry of the final judgment. However, the court reversed the modification of the parenting plan, holding “While the general magistrate recommended that the father be awarded an additional weekend every other month, the magistrate also recommended adoption of a model parental time-sharing schedule which resulted in a substantial reduction of the father’s summer time-sharing with the children despite neither party having requested such relief. The trial court incorporated the general magistrate’s findings and recommendations into its final judgment on the father’s petition, including the modified time-sharing arrangement which the father challenged in this appeal. We reverse the trial court’s adoption of the modified time-sharing arrangement because it reduced the father’s summer time-sharing with the children despite neither party having requested such relief. [internal citations omitted].”
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