Extreme caution should be exercised when a party in a dissolution of marriage action seeks temporary emergency relief without giving notice to the other party. This is what is commonly known as ex parte relief, which is seeking relief without providing any notice whatsoever to the other side. These types of proceedings are at substantial risk of reversal based upon a denial of due process of law.
There is a basic premise under the law that states that absent an emergency, failure to give notice to the other party is tantamount to a denial of due process of law. The appellate courts throughout the State of Florida routinely reverse temporary custody orders entered without notice to the other party, or with insufficient notice, or with insufficient opportunity to be heard. Putting it a different way, there are at least two sides to every story, and both parties should be afforded the opportunity to present their position to a judge, prior to the Court making any adjustments regarding a previously existing time-sharing schedule between the parents.
The former husband, Basem Yunis, ran afoul of these basic principles when dealing with an ex parte motion seeking emergency relief. You can read about the facts in his case in Suleiman v. Yunis, 168 Southern 3rd 319 (Florida 5th DCA 2015).
To modify custody on a temporary basis, the party seeking relief has the burden of proving two things. First, you must prove that a substantial change in the circumstances of one or both of the parties has occurred, and secondly, that the best interests of the child will be promoted by any changes in custody or timesharing.
When an ex parte order is entered by the court, which has the effect of changing custody or timesharing, such relief may be granted in only limited circumstances. Generally, there must be allegations that the child is threatened with physical harm or is about to be improperly removed from the state of Florida. Any pleading short of those allegations should mandate a full evidentiary hearing, with notice and opportunity to be heard by both sides, rather than the court granting ex parte relief.
Along similar lines, a court does not have the legal authority to change a previously existing time-sharing schedule based upon an alleged violation of shared parental responsibilities under Florida law. If the court were to do such a thing, any change would be based upon a punishment against a parent rather than the court considering the best interests of the minor child. A change in time sharing or custody should never be imposed based upon a sanction for the misconduct or bad behavior of either party, but must always be based upon the best interests of the minor child.
Family Law disputes regarding minor children are extremely sensitive proceedings, which require a steady hand and common sense approach to resolving conflicts. Boca Raton divorce attorney Alan R. Burton has the demeanor to approach high conflict cases with a steady hand, in order to achieve a more expeditious resolution. Mr. Burton is an attorney who is readily accessible by telephone. You can call him today directly on his cell phone at 954-295-9222 to discuss any issues regarding any of your family related matters