MICHAEL LEE LEINENBACH, APPELLANT,
v.
KARYN RUTH LEINENBACH, A/K/A KARYN GAMBLE RICH, APPELLEE
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A father appeals an order transferring primary residential custody of his son to the mother, which was based on a guardian ad litem's report. The court reversed because the father was denied the procedural due process right to a hearing to rebut the guardian's report before the trial court entered its final order.
Procedural due process prohibits a trial court from relying on a guardian ad litem's report to determine child custody without first providing the report to the parties and permitting them an opportunity to introduce evidence rebutting the conclusions or recommendations in the report, as contemplated by Florida Statute 61.403(5).
[1] A trial court cannot rely on a social investigation report or a guardian ad litem's report to determine child custody without first providing the report to the parties an…
[2] A guardian ad litem's report must be submitted to the parties at least twenty days prior to the hearing at which it will be presented, unless the court waives such time l…
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Join FLexlaw to unlock all legal intelligence“Procedural due process prohibits a trial court from relying upon a social investigation report to determine child custody without first providing the report to the parties and permitting them to introduce evidence that might rebut the conclusions or recommendations contained in the report.”
Establishes the core due process requirement that parties must have opportunity to rebut investigative reports in custody determinations
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Join FLexlaw to unlock all legal intelligenceFollowing a 1991 dissolution of marriage judgment that gave the father primary residential custody of their six-year-old son and shared parental respo…
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[*253] ALTENBERND, Judge.
Michael Lee Leinenbach (the father) appeals an order that modifies a final judgment for dissolution of marriage by transferring primary residential custody of the parties’ son to his former wife (the mother). The trial court entered the order in reliance upon the report of a guardian ad litem. Because the father was given no opportunity for a hearing to address the report, we must reverse the order and remand for farther proceedings.
The final judgment of dissolution entered on November 15, 1991, gave the parties shared parental responsibility for their six-year-old son and awarded the father primary residential custody. The mother was obligated to pay child support. Shortly thereafter, the father moved to Indiana with his son. On March 11, 1992, the mother filed a complaint for modification of the final judgment to obtain custody of the son and child support.
At a hearing on June 8,1992, the guardian ad litem testified that the father was not encouraging a relationship between mother and child. The trial court reserved ruling on the mother’s request, but entered an interim order on June 23, giving her eight weeks of uninterrupted visitation with the child. The order requested the guardian ad litem observe the mother and child during this visitation and prepare a report with the guardian’s findings and recommendations.
When the mother’s attorney sent the proposed interim order to the trial court, he attached a letter indicating that both attorneys expected the trial court to conduct a hearing to address the contents of the guardian ad litem’s report and offering to take the steps necessary to set a hearing. Our record does not indicate that anyone arranged for the anticipated hearing. On August 10,1992, the guardian ad litem submitted her report, recommending a change in custody. Without further hearing, the trial court entered a final order expressly relying on that report and transferring custody to the mother. The father’s attorney filed a motion for rehearing, observing that the trial court had not conducted the necessary hearing to address the report. That motion for rehearing was denied without a hearing.
Procedural due process prohibits a trial court from relying upon a social investigation report to determine child custody without first providing the report to the parties and permitting them to introduce evidence that might rebut the conclusions or recommendations contained in the report. See § 61.20, Fla.Stat. (1991); Kern v. Kern, 333 So. 2d 17 (Fla.1977). The mother argues that the same protection is not required for a report of a guardian ad litem that is submitted pursuant to section 61.403, Florida Statutes (1991). We disagree. Indeed, section 61.403(5) contemplates that a guardian’s report will be submitted to the parties at least twenty days “prior to the hearing at which it will be presented unless the court waives such time limit.”
The father was not afforded an opportunity to rebut the contents of the report prior to the entry of the final order. Accordingly, we reverse and remand. Because the child has been in the primary custody of the mother since June 1992, the trial court may permit the child to remain in her custody while this matter is resolved on remand.
Reversed and remanded.
CAMPBELL, A.C.J., and SCHOONOVER, J., concur.
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Miller v. Miller, 671 So. 2d 849 (Fla. 5th DCA 1996)…ccuser and to examine evidence the trial court relies upon to reach a decision. The parent in a change of custody case must be allowed an opportunity to rebut the conclusions of the report and to cross-examine the preparer. Leinenbach v. Leinenbach, 634 So. 2d 252, 253 (Fla. 2d DCA 1994); Clayman v. Clayman, 536 So. 2d 358 (Fla. 3d DCA 1988) (citing In re Gregory, 313 So. 2d 735 (Fla.1975)). In this case the trial court deprived the former husband of the right to present a witness who was available, thereby d…
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Lewis v. Dep't of Health & Rehabilitative Servs., 670 So. 2d 1191 (Fla. 5th DCA 1996)…aterial needs.” A trial court is prohibited from relying upon a social investigation report when it is not provided to the parents or they are not afiowed an opportunity to depose or cross- [*1194] examine the preparer. In Leinenbach v. Leinenbach, 634 So. 2d 252, 253 (Fla. 2d DCA 1994), the court held that, “due process prohibits a trial court from relying upon a social investigation report” without permitting the parties to “rebut the conclusions or recommendations contained in the report.” See also In re…
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Robinson v. Robinson, 713 So. 2d 437 (Fla. 2d DCA 1998)…ral due process rights by admitting Birckett’s report into evidence and relying on it without first providing the Wife with a meaningful opportunity to review the report and prepare her rebuttal. See Kern, 333 So. 2d at 20; Leinenbach v. Leinenbach, 634 So. 2d 252 (Fla. 2d DCA 1994); Crifaci v. Crifaci, 626 So. 2d 287 (Fla. 4th DCA 1993). Accordingly, we reverse the custody determination and remand for a new trial. We also reverse the amount of alimony awarded to the Wife. Despite the trial court’s finding t…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Kern v. Kern, 333 So. 2d 17 (Fla. 1976)