SANDRA BEGENS, APPELLANT,
v.
BRADLEY F. BEGENS, APPELLEE
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The Fourth District Court of Appeal reversed a trial court's order modifying child custody from mother to father's siblings, holding that such modification violated due process because the mother was denied an opportunity to be heard. The court held that custody cannot be changed as punishment for frustrating visitation rights without evidence of what serves the children's best interests.
A trial court cannot modify custody as punishment for frustrating visitation rights in the absence of evidence of what is in the best interests of the children. Reasonable notice and an opportunity to be heard, including the right to present evidence on the issues, is required before entry of a modification decree. Custody modification cannot be used as a device to obtain compliance with other court orders.
[1] A modification of custody and visitation requires reasonable notice and an opportunity to be heard, including the right to present evidence.
[2] A court cannot change custody solely as punishment for frustration of visitation rights without evidence that the change is in the best interests of the children.
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Join FLexlaw to unlock all legal intelligence“Reasonable notice and an opportunity to be heard is required before the entry of a modification decree since there must be a showing of substantial change in circumstances for entry of the order.”
Establishes the due process requirement that the custodial parent must receive notice and opportunity to be heard before custody modification
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Join FLexlaw to unlock all legal intelligenceSandra Begens (wife) had been awarded custody of the children. The trial court modified the custody order, transferring custody from the mother to the…
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PER CURIAM.
We reverse the trial court’s order modifying custody and visitation as it does not comport with due process.1 Reasonable notice and an opportunity to be heard is required before the entry of a modification decree since there must be a showing of substantial change in circumstances for entry of the order. Connors v. Connors, 327 So. 2d 877 (Fla. 2d DCA 1976). An opportunity to be heard includes the right to present evidence bearing on the issues. See Hart v. Hart, 458 So. 2d 815 (Fla. 4th DCA 1984). Here the wife was not given any opportunity to present evidence on the matter of custody modification or changes in visitation.
It appears that the trial court’s order changing custody from the mother to the father’s brother and sisters was prompted by the wife’s repeated frustration of court ordered visitation. However, custody cannot be changed purely as punishment for frustration of visitation rights in the absence of evidence of what is in the best interests of the children. We repeat what we said in Crippen v. Crippen, 508 So. 2d 1339 (Fla. 4th DCA 1987):
The record, in the instant case, supports a finding that the mother has frustrated the father’s visitation with their children. Nevertheless, petitioner has failed to show that wresting custody from the mother and placing it with the father would promote the best interest of the children. The trial court was understandably frustrated with the mother’s apparent defiance of his court orders to permit visitation. Certainly, willfully depriving a noncustodial parent of visitation rights is a serious matter. It requires the court’s prompt attention and is a factor to be considered in a custody dispute. It cannot, however, constitute the sole reason for a change of custody. The affront to the trial court’s authority should be subordinated to the welfare of the children. We need not preserve the dignity of the court at the expense of the minor children. There must be evidence that the interest of the children will be promoted by a change of custody. ‘Changing a custody of a child is not a device to be used to obtain compliance with other court orders.’ Agudo v. Agudo, 411 So. 2d 249, 251 n. 4 (Fla. 3d DCA 1982) (visitation dispute); Doran v. Doran, 212 So. 2d 100 (Fla. 4th DCA 1968).
508 So. 2d at 1340.
Reversed and remanded for evidentiary hearing on modification of custody and visitation.
ANSTEAD, HERSEY and WARNER, JJ., concur. . Appellant has notified us that the trial court has now entered an order vacating the non-final order on appeal. While that action is consistent with our opinion, because the parties failed to seek a relinquishment of jurisdiction from this court, Soles v. Soles, 536 So. 2d 367 (Fla. 1st DCA 1988), we choose to issue this opinion to avoid any jurisdictional challenge to the subsequently entered order.
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Citator
Cited By (11 total)
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Zelman v. Zelman, 175 So. 3d 871 (Fla. 4th DCA 2015)…to be heard includes the right to introduce evidence at a meaningful time and in a meaningful manner.” Vollmer v. Key Dev. Props., Inc., 966 So. 2d 1022, 1027 (Fla. 2d DCA 2007) (internal citations and quotations omitted); see also Begens v. Begens, 617 So. 2d 360, 361 (Fla. 4th DCA 1993) (“An opportunity to be heard includes the right to present evidence bearing on the issues.”); Pettry v. Pettry, 706 So. 2d 107, 108 (Fla. 5th DCA 1998) (“Due process requires that a party be given the opportunity to be heard…
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Landingham v. Landingham, 685 So. 2d 946 (Fla. 1st DCA 1996)…7). “Changing a child’s custody is not a device to be used to obtain compliance with court orders.” Id. at 1340 (quoting Agudo v. Agudo, 411 So. 2d 249 (Fla. 3d DCA), rev. denied, 418 So. 2d 1278 (Fla.1982)); see also Doran, supra; Begens v. Begens, 617 So. 2d 360 (Fla. 4th DCA 1993) (reversing the trial court’s custody modification after finding it [*951] based on the mother’s frustration of court-ordered visitation). The former husband failed to present any evidence which showed that the former wife’s resid…
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Vazquez v. Vazquez, 626 So. 2d 318 (Fla. 5th DCA 1993)…983). In the case sub judice, the appellant was not given the opportunity to testify or to present a witness who was present to testify on her behalf. She was deprived of her right to participate in the hearing. This was error. See Begens v. Begens, 617 So. 2d 360, 361 (Fla. 4th DCA 1993). REVERSED and REMANDED for evi-dentiary hearing on modification of custody and visitation. HARRIS, C.J., and GOSHORN, J., concur.…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hart v. Hart, 458 So. 2d 815 (Fla. 4th DCA 1984)
- Doran v. Doran, 212 So. 2d 100 (Fla. 4th DCA 1968)
- Nury Agudo v. Marcelo Agudo, 411 So. 2d 249 (Fla. 3d DCA 1982)
- Soles v. Soles, 536 So. 2d 367 (Fla. 1st DCA 1988)
- Crippen v. Crippen, 508 So. 2d 1339 (Fla. 4th DCA 1987)
- Perez v. Ford Motor Corp., 508 So. 2d 1339 (Fla. 3d DCA 1987)
- Connors v. Connors, 327 So. 2d 877 (Fla. 2d DCA 1976)