JOHN SHAW, APPELLANT,
v.
BETH SHAW, APPELLEE
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The Florida District Court of Appeal reversed a trial court's order modifying child custody after the father was denied an opportunity to be heard when the judge summarily awarded temporary custody to the maternal grandparents following an ex parte conversation with the children.
The court held that due process rights apply to custody modification hearings and that the father's constitutional rights were violated. The order awarding temporary custody to the grandparents was reversed and set aside, and the original order awarding temporary custody to the father was reinstated, subject to a future proper evidentiary hearing on permanent custody.
[1] Due process rights to notice and an opportunity to be heard apply to hearings to modify child custody awards.
[2] A trial court cannot summarily set aside a custody order and award temporary custody to other parties without providing the original custodial parent an opportunity to pr…
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Join FLexlaw to unlock all legal intelligence“The order of February 29, 1984, was entered in violation of the father's basic constitutional due process rights to notice and opportunity to be heard”
Establishes the central holding that the trial court's action violated fundamental due process protections.
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Join FLexlaw to unlock all legal intelligenceA 1980 dissolution judgment awarded custody of two children to the mother. In February 1984, the father filed a petition to modify custody based on a …
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COWART, Judge.
This case involves due process in a hearing to modify a child custody award.
The 1980 Florida final judgment of dissolution in this case gave custody of the two children of the parties to the mother. After a proper notice and hearing, the trial judge found a substantial material change of circumstances and by order dated February 10, 1984, granted the husband’s petition for modification of custody and ordered the mother’s father and stepmother (maternal grandparents), who had actual custody of the children in Ohio, to deliver the children to the father who was thereby awarded temporary custody.
On February 20, 1984, the maternal grandparents filed a “Motion to Interplead and Motion to Reconsider” the custody order of February 10, 1984, alleging that order was not in the best interest of the children and requesting that the maternal grandparents be given custody of the children. At a hearing on the same day this motion was filed, the trial judge first stated that a full-scale, full-blown hearing was necessary and that he did not have time to hear it that day.
However, the trial judge then talked to the two children privately in an unreported conference after which the court summarily set aside the custody order of February 10, 1984, awarded the temporary custody of the two children to the grandparents and denied the father an opportunity to present any further evidence at that time or later. An order declaring the custody order of February 10, 1984, null and void and granting temporary custody of the children to the grandparents was entered February 29, 1984, and is the subject of this appeal by the father. The order of February 29, 1984, was entered in violation of the father’s basic constitutional due process rights to notice and opportunity to be heard and it is hereby reversed and set aside and the order of February 10, 1984, is reinstated. Due process applies to hearings to modify custody awards such as those in this case, see Connors v. Connors, 327 So. 2d 877 (Fla. 2d DCA 1976), although the two orders in this case related to temporary custody. The trial judge indicated that by temporary custody he was referring to “a year or two.” Because the order of February 10, 1984, relates to temporary custody the issue as to the proper permanent custody or primary physical residence (§ 61.-13(2)(b)2.a., Fla.Stat.) of the children in this case is subject to a future proper full evidentiary hearing.1
REVERSED.
COBB, C.J., and SHARP, J., concur. . At any future consideration for a change in the children’s custody in which the grandparents are contending parties, the applicability of the following cases should be considered: Gorman v. Gorman, 400 So. 2d 75 (Fla. 5th DCA 1981); Johnson v. Richardson, 434 So. 2d 972 (Fla. 5th DCA 1983); Pape v. Pape, 444 So. 2d 1058 (Fla. 1st DCA 1984); Jayne v. Dennison, 284 So. 2d 237 (Fla. 2d DCA 1973), cert. denied, 293 So. 2d 713 (Fla.1974).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Wilson v. Blaine Alan Roseberry, 669 So. 2d 1152 (Fla. 5th DCA 1996)…idence on her own behalf. Under these facts, such an order violated the mother’s basic constitutional due process rights to notice and an opportunity to be heard. See Gielchinsky v. Gielchinsky, 662 So. 2d 732, 733 (Fla. 4th DCA 1995); Shaw v. Shaw, 455 So. 2d 1156, 1157 (Fla. 5th DCA 1984). We acknowledge that entry of an ex parte order modifying child custody is not per se reversible, but instead, such an order can be upheld where the case involves a true emergency such as where “a child is threatened with…
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Hickey v. Burlinson, 33 So. 3d 827 (Fla. 5th DCA 2010)…ies.” The court in Hathcock v. Hathcock, 680 So. 2d 564, 565 (Fla. 1st DCA 1996), relied on Nowak when it held that a request that a court reporter transcribe a child’s in camera testimony “must be honored.” (Emphasis added.) See also Shaw v. Shaw, 455 So. 2d 1156 (Fla. 5th DCA 1984) (reversing the trial court’s order summarily setting aside a previous order awarding the father custody after holding a private, unreported conference with the children and denying the father the opportunity to present any furthe…
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Murphy v. Lenora D. Ridgard, 757 So. 2d 607 (Fla. 5th DCA 2000)…is petition. Due process principles apply to modification proceedings including child custody and visitation matters. See Wilson v. Roseberry, 669 So. 2d 1152 (Fla. 5th DCA 1996); Ackerson v. Murphy, 622 So. 2d 154 (Fla. 5th DCA 1993): Shaw v. Shaw, 455 So. 2d 1156 (Fla. 5th DCA 1984). In this case, no motion seeking summary adjudication of the father’s second amended petition was filed. The matter was not at issue when, following the hearing on the mother’s pending motions for injunctive relief and temporary…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gorman v. Gorman, 400 So. 2d 75 (Fla. 5th DCA 1981)
- Pape v. Pape, 444 So. 2d 1058 (Fla. 1st DCA 1984)
- Connors v. Connors, 327 So. 2d 877 (Fla. 2d DCA 1976)
- Jayne v. Dennison, 284 So. 2d 237 (Fla. 2d DCA 1973)
- Hattie M. Johnson v. Richardson, 434 So. 2d 972 (Fla. 5th DCA 1983)
- State of Fla. ex rel. Stephen L. Boyles v. The Honorable E. L. Eastmoore, 293 So. 2d 713 (Fla. 1974)
- Dade Cnty. v. The Miami Herald Publ'g Co., 293 So. 2d 713 (Fla. 1974)