CAROLYN MASSIEL LUNA
v.
JONATHAN VICTORIANO HERNANDEZ
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A Florida appellate court reversed a trial court's suspension of the mother's timesharing and grant of exclusive timesharing to the father because the notice for the case management conference did not forewarn the parties that a change in timesharing would be litigated, violating due process requirements.
The trial court violated the mother's due process rights by changing timesharing without requisite pleadings or notice of hearing that timesharing would be at stake. Parties must be given adequate warning that custody or timesharing is at issue before a hearing where such changes are ordered.
[1] A trial court cannot change timesharing or custody without adequate notice to the parties that such a change is at issue.
[2] A case management conference notice must specifically forewarn parties if a potential change in timesharing will be litigated.
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Join FLexlaw to unlock all legal intelligence“the trial court violated [the wife's] right to due process by changing the custody of the minor children without the requisite pleadings or notice of hearing”
Establishes the core due process requirement that parties must receive notice and pleadings before custody changes are ordered
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Join FLexlaw to unlock all legal intelligenceThe trial court ordered a change in timesharing at a case management conference, suspending the mother's timesharing and granting the father exclusive…
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Third District Court of Appeal State of Florida
Opinion filed November 26, 2025. Not final until disposition of timely filed motion for rehearing.
No. 3D25-2045 Lower Tribunal No. 16-1845-FC-04
Carolyn Massiel Luna, Appellant,
vs.
Jonathan Victoriano Hernandez, Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Scott M. Bernstein, Judge.
Karen B. Parker, P.A., and Karen B. Parker, for petitioner. Weinbaum P.A., and Lane Weinbaum (Coral Springs), for respondent.
Before FERNANDEZ, MILLER, and BOKOR, JJ.
PER CURIAM.
Appellant, the mother, seeks review of a nonfinal order suspending her timesharing and granting appellee, the father, exclusive timesharing with their son for a defined period of time. The mother is otherwise prohibited from having any contact with the child during the specified time. The trial court ordered the change in timesharing at a case management conference, following claims of parental alienation. Because the notice setting the matter for conference did not forewarn the parties they would be litigating a potential change in timesharing, we are constrained to reverse. See Busch v. Busch, 762 So. 2d 1010, 1010–11 (Fla. 2d DCA 2000) (reversing the dissolution of marriage final judgment because “the trial court violated [the wife's] right to due process by changing the custody of the minor children without the requisite pleadings or notice of hearing” as “the wife was given no warning that the custody of her children was at stake" prior to hearing at issue); Schnicke v. Schnicke, 533 So. 2d 337, 337–38 (Fla. 5th DCA 1988) (reversing the custody order because "[n]o pleadings were filed requesting a change of custody nor was there any notice that any such change of custody
would be heard or considered by the court”); Foreman v. James, 305 So. 3d 656, 656–57 (Fla. 3d DCA 2020) (holding trial court was required to conduct an evidentiary hearing preceded by appropriate notice to "comport with due process requirements" prior to issuing order removing minor child for a period of ninety-four days). In doing so, we express no opinion on the merits of the modification of custody decision.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Busch v. Busch, 762 So. 2d 1010 (Fla. 2d DCA 2000)
- Schnicke v. Schnicke, 533 So. 2d 337 (Fla. 5th DCA 1988)