Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
When a party requests that a petition be dismissed in a Florida family law case, what standard does the court use to evaluate that request? Generally, the trial court must take the allegations in the petition as true and determine whether those allegations lead to relief that the court can grant. This was an issue in the case Restrepo v. Aquino, 3D23-2175 (Fla. 3d DCA March 5, 2025).
The mother petitioned for modification of the final judgment, time-sharing and child support. The trial court dismissed her petition, and she appealed. The appellate court affirmed, holding “The grounds alleged in the petition, taken as true, do not meet the requirements of section 61.13(3), Florida Statutes. § 61.13(3), Fla. Stat. (2023) (‘A determination of parental responsibility, a parenting plan, or a time-sharing schedule may not be modified without a showing of a substantial and material change in circumstances and a determination that the modification is in the best interests of the child.’); Villalba v. Villalba, 316 So. 3d 366, 368 (Fla. 4th DCA 2021) (‘Dismissal of a petition for modification for failure to state a cause of action is proper where the petition alleges grounds which, if substantiated, would not give the trial court a basis to modify the final judgment.’).”
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