Florida Court Addresses Suspension Of Timesharing In Emergency Circumstances

Parents are generally obligated to turn their children over to their co-parent when it’s their time with the children. Nonetheless, there are emergency situations in which timesharing can be suspended for the duration of the emergency without repercussions. In this article, the Tampa, FL, divorce lawyers at Faulkner Law Group, PLLC will discuss the case of Ramirez v. Marzano, No. 4D2023-1170 (Fla. 4th DCA Apr. 3, 2024), which addressed the suspension of timesharing under emergency circumstances.

Background of the case 

In this case, a contempt motion was filed by the father that alleged the mother violated a prior order requiring her to take their child to school on her timesharing days, unless the child was sick or there was some other form of emergency. This led to a scheduled hearing. During the hearing, the mother had already appealed the prior order and sought to stay the enforcement of that order.

At the hearing, the father raised new “emergency” allegations. He learned during the mother’s deposition three weeks earlier about unsupervised overnight trips to Orlando and that his child was sleeping in bed with another man. The court, without notice to the mother’s lawyer, suggested that the father file an ex parte emergency motion to address the matter promptly, which bypassed standard notice procedures.

Thirteen days later, the father filed a motion against the mother, which the court granted, suspending the mother’s overnight timesharing and forbidding the removal of the children from Broward County. The motion was effective until further order.

At the return hearing, the court offered to hold an immediate evidentiary hearing, but the mother objected since she had not been given proper notice or preparation time. The court modified the order slightly (allowing weekend visits), but the evidentiary hearing was scheduled for four months later (which was not prompt).

The appeal 

The mother appealed the ruling, making two arguments:

• The ex parte emergency order violated due process because she had already been alerted to the allegations, and emergency relief was not necessary, or at least required more urgency than filing 13 days later.
• The failure to provide a prompt evidentiary hearing after the ex parte order further violated her due process rights.

In this case, the Fourth District Court of Appeal agreed with the mother on both counts. The court found that:

• There was no genuine emergency – The father had already put the mother on notice during the contempt hearing. In addition, the father failed to prove that the children were going to suffer imminent harm. Without that, the ex parte approach was unjustified.

• Due process violated by delay – Courts must provide a prompt opportunity to be heard when emergency modifications are granted. Scheduling a hearing four months later was inappropriate. An immediate hearing on the non-evidentiary calendar, without notice, was also improper.

• Judicial misstep – The trial judge’s suggestion to file an ex parte motion, despite its potential unfairness, strayed from judicial neutrality and violated the ethics rule against encouraging ex parte communication.

Thus, the court found in favor of the mother on both matters and reversed both the ex parte order and the return hearing order, remanding the case to the lower court to be reheard.

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Faulkner Law Group, PLLC, represents the interests of Tampa residents during their divorce. Call our Tampa family lawyers today to schedule an appointment, and we can begin discussing your next steps right away.

Source:

4dca.flcourts.gov/content/download/2415278/opinion/Opinion_2023-1170.pdf