Can a Judge Significantly Change Child Timesharing When the Only Issue Before the Court was the Exchange Location?

Here is a recent case about a judge who changed an Orlando couple’s timesharing and child support obligations without even being asked.

In an appeal from the Circuit Court for Orange County, Zameena (the former wife) appealed an order regarding custody and support where the trial judge on his own awarded her former husband El Houcine sole timesharing of the parties’ children and limited her contact with the children to “as allowed” by her ex-husband.

In this case, a 2015 final judgment was entered dissolving the marriage which ratified an agreed parenting plan from the parties. The agreement provided for shared parental responsibility for all major decisions involving their three minor children, and they agreed to an equal division of timesharing with their children. The exchange of the children was to take place each Sunday.

The former husband asked the trial court to designate a specific location where the parties would exchange their children for timesharing, claiming that the parenting plan didn’t specify the location for the parties’ children exchange. Because of a recent incident, he asked the court to direct all future timesharing exchanges take place at an Orlando facility that provides a monitored program for children custody exchanges. The former husband set his motion for hearing and gave proper notice to his ex-wife.

The former wife didn’t attend this hearing, and the trial court entered the order on appeal, in which—on its own motion—awarded the former husband sole timesharing of the parties’ children and limited his ex-wife’s contact with the children to “as allowed” by him. The court also reduced his monthly child support obligation. Following the trial court’s denial of the former wife’s motion for rehearing, she appealed.

Judge Brian D. Lambert of Florida’s Fifth District Court of Appeal wrote in his opinion that the former wife argued that the trial court’s order violated her due process rights. She said that it significantly modified her timesharing with her children—when the only matter scheduled to be discussed at the hearing was the location for the timesharing exchange. Judge Lambert and the District Court of Appeal agreed, explaining that it’s well settled that an order adjudicating issues not presented by the pleadings, noticed to the parties, or litigated at the trail court level denies fundamental due process.

Citing a First District appellate decision, Judge Lambert said that a trial court violates due process when it “modifies visitation, changes primary residence, or alters child support when the notice of hearing does not include this issue.” In addition, Lambert noted that there was no emergency alleged by the former husband in his motion that required the trial court to act.

Concluding that the trial court’s order was entered in violation of Zameena’s right to due process, the District Court of Appeal reversed. Barsis v. Barsis, Case No. 5D 16 – 2768 (Fla. 5th DCA February 3, 2017).

Do you have questions about timesharing and timesharing exchanges for your children with your ex-spouse? Contact Michael DeVoe, an experienced family law attorney in Orlando. Michael will answer your questions about child custody and timesharing agreements, as well as any other family law issues like child support modification and injunctions. Contact Michael DeVoe today for a free consultation at (407) 284-1620 or use the easy-to-use email form on our website.