IN RE NAME CHANGE OF DEAN EDWARD GILL AND STEPHANIE LEA GILL. MARVIN C. GILL, APPELLANT,
v.
CAROLYN DEAN, APPELLEE
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The court held that an incarcerated father should have been afforded the opportunity to be present at a hearing on a petition for name change of his children.
A father, incarcerated and indigent, objected to his children's name change petition filed by his ex-wife. He requested to be present at the hearing t…
The full statement of facts, procedural history, and disposition for this case are member content.
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RYDER, Acting Chief Judge.
Marvin C. Gill challenges the trial court’s order granting Carolyn Dean’s petition for name change of the parties’ minor children. We reverse.
Dean and Gill were married and Gill is the natural father of the two minor children involved in' this name change action. The parties were divorced on January 5, 1982. On September 22, 1989, Dean filed a petition for name change of the parties’ two minor children. On October 19, 1989, while incarcerated, Gill received notice of the petition for name change. Gill filed an answer and defenses to the petition in which he vigorously objected to the name change of his children.
A nonjury trial was set for January 17, 1990. On December 15, 1989, Gill filed a petition for writ of habeas corpus ad testifi-candum requesting his presence at the trial. Gill stated that due to his indigent condition, he would have to defend his cause pro se. He stated that his presence at trial was necessary so that he could cross-examine Dean, her witnesses and to present witnesses and evidence for the defense of the name change. Gill’s petition was denied.
Gill should have been afforded the opportunity to be present at the name change hearing. See McCuiston v. Wanicka, 483 So. 2d 489 (Fla. 2d DCA 1986), “The law abhors thé denial of access to the courts for any other reason than a wilful abuse of the processes of the court.” McCuiston, (quoting Rashard v. Cappiali, 171 So. 2d 581, 583 (Fla. 3d DCA 1965)).
Accordingly, the case is reversed and remanded for proceedings consistent with this opinion.
THREADGILL and PARKER, JJ., concur.
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Wilson v. Smith, 51 So. 3d 1282 (Fla. 2d DCA 2011)…uest for rehearing. An incarcerated parent’s due process rights are impinged in proceedings to change the name of a child where a hearing is requested but access to the hearing is not provided to the incarcerated parent. See generally Gill v. Dean, 575 So. 2d 311, 312 (Fla. 2d DCA 1991); see also Alfonso v. Alfonso, 823 So. 2d 261, 262 (Fla. 3d DCA 2002) (concluding that where an incarcerated party requests to be present and put forth evidence at a hearing on a family law matter, the trial court should affor…
Authorities Cited
- Rashard v. Cappiali, 171 So. 2d 581 (Fla. 3d DCA 1965)
- McCUISTON v. Wanicka, 483 So. 2d 489 (Fla. 2d DCA 1986)