Posted by Nydia Streets of Streets Law in Florida Child Custody
Can sole parental responsibility be awarded to one parent if the other parent does not appear for trial in a Florida child custody case? The answer depends on what was contained in the petition, and whether evidence was presented at the trial to support this award. This was one issue in the case Keck v. Fortier, 5D2024-3056 (Fla. 5th DCA June 27, 2025).
In this paternity case, a final judgment was entered which granted the father majority time-sharing, sole parental responsibility and child support. The mother appealed, but did not provide a transcript of the final hearing. This is usually fatal to an appeal, but in this case, the appellate court found there were errors on the face of the final judgment that warranted reversal.
The appellate court first remarked that there were no findings in the final judgment to support the time-sharing schedule. The court held “[A]bsent an agreement by the parties, a parenting plan is insufficient if its time-sharing schedule lacks ‘findings as to the statutory factors.’ See Mendez v. Mendez, 390 So. 3d 663, 667 (Fla. 4th DCA 2024). Such is the case here, where the judgment contains no best interest findings to support the timesharing schedule.”
Turning to the issue of sole parental responsibility, the court found it was error for the court to award this when the father’s petition requested shared parental responsibility. The court held “Here, Father petitioned for shared parental responsibility. As such, the court’s award of sole parental responsibility violated Mother’s right to due process. And contrary to what Father claims, this issue could not have been tried by consent. See Chamberlain v. Degner, 368 So. 3d 1039, 1045 (Fla. 1st DCA 2023) (‘Former Husband did not attend the trial and thus any issue could not be tried by consent.’); Clark v. Clark, 147 So. 3d 655, 658 (Fla. 5th DCA 2014) (‘Wife suggests that Husband’s failure to attend the hearing is tantamount to consenting to amending the complaint in any way but offers no authority for this proposition. Unpled issues tried when a party does not appear are not tried by consent, but in absentia.’).
Last, as to child support, the court found error in that there were insufficient findings as to the parties’ net incomes in the final judgment and that no child support guidelines worksheet was referenced or included. The court also found “A child’s uninsured healthcare expenses ‘shall be added to the basic [child support] obligation unless these expenses have been ordered to be separately paid on a percentage basis.’ § 61.30(8), Fla. Stat. This percentage must be proportionate to the parents’ incomes. See Garcia, 314 So. 3d at 626; Lockett v. Lockett, 235 So. 3d 1003, 1006 (Fla. 2d DCA 2017). This proportionality principle extends to other out-of-pocket childrearing costs. See Sickels v. Sickels, 221 So. 3d 778, 780 (Fla. 5th DCA 2017); Hindle, 33 So. 3d at 786–87. Here, the judgment indicates that Father’s income is nearly three times greater than Mother’s. This cannot be reconciled with its decree that the parties must equally share their child’s educational and uninsured healthcare expenses.”
Schedule your meeting with a Miami family law attorney to form a plan in proceeding with your case.