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Does a Father in Prison Have Rights in Divorce?

An incarcerated husband recently appealed his final divorce judgment on the grounds that the trial court erred in denying his motion for rehearing. He claimed that he was prevented by prison officials from appearing telephonically at the final hearing, and that the trial court abused its discretion by denying his motions to stay the dissolution proceeding until his anticipated release from prison. The Florida District Court of Appeal affirmed the second claim without discussion, but considered his first claim.

The appellate court found that the trial court gave the husband the opportunity to appear by telephone at the final hearing—but he failed to appear. After the trial court entered its final judgment, the husband notified the court in a letter—which was treated as a timely motion for rehearing—that he tried to appear by phone from prison, but that prison official prevented him from doing so. The husband said that his classification officer failed to answer the phone when the trial court returned an earlier call from the officer. As a result, the husband couldn’t present his case at the final hearing.

The District Court of Appeal quoted an earlier decision which said, “[a]n incarcerated party has a right to be heard in civil matters if the party has brought to the court’s attention his or her desire to appear personally or telephonically.”

Because of this, the husband had “the due process right to be heard” at the final hearing, the Court said. Because he argued that he attempted to appear but was prevented from attending by the actions of prison personnel, the trial court erred in summarily denying his motion. He should have been given an opportunity to prove that the officer prevented him from getting to the phone.

Accordingly, the District Court of Appeal reversed and remanded the case for the trial court to reconsider the motion for rehearing and to give the husband the chance “to prove . . . that he attempted to appear telephonically at the final hearing but that he was denied the opportunity to do so.” Feducia v. Feducia, 2017 Fla. App. LEXIS 10682 (Fla. DCA 1st July 26, 2017).

As Judge Warner observed, in her special concurrence in Rogers v. Rogers (Fla. 4th DCA 2008):

Unlike the state’s obligation in criminal cases to ensure the defendant’s presence at critical stages of proceedings, in civil court no corresponding duty is imposed on the state. A prisoner involved in civil litigation (including family law cases) has the right to be heard but must take the initiative to secure the opportunity to appear and present his version of the facts.

The prisoner must tell the court of his or her desire to appear personally or telephonically at hearing or trial.

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There can be a lot of stress and questions in the divorce process. Some spouses don’t understand their legal rights and obligations. A spouse in prison can add more complexities to the case. You need an attorney with the experience to protect your rights and work for the best possible outcome.

Call DeVoe Law Firm to schedule a free consultation with an experienced divorce attorney.

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