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Matin v. Hill12/19/2001
Soheyla Matin (mother) appeals a non-final order denying her motion to dissolve an ex parte child pick-up order granted in favor of John Hill (father). We reverse because the trial court order awarding temporary custody to the father without a subsequent evidentiary hearing violated the mother's due process rights.
The father and mother lived together on and off for approximately ten years. In 1995, during one of the couple's breakups, the mother was awarded custody of the minor child by a California court. Afterward, both parties moved to Florida and resided together until 1999. In July of 1999 the mother moved out of the couple's home and took the child with her.
On March 9, 2001, the father filed a petition in the Broward County circuit court to modify the California judgment. On that same day, the father also filed an ex parte emergency motion for temporary custody and a child pick-up order. The motion contained several allegations based on statements allegedly made by the child's school teacher, principal, counselor, and after-care director. These statements concerned the child's tardiness, absenteeism, behavior and hygiene, and school staff members' suspicions concerning the mother's state of sobriety when picking up the child from school.
On March 12, 2001, the trial court entered an ex parte order to pick up the minor child and issued a notice to appear. The mother was served with the order at the child's school, where the child was handed over to her father. It was the first time the mother received notice of the temporary custody change.
The mother filed a motion to dissolve the ex parte order and requested a hearing within five days pursuant to Florida Rule of Civil Procedure 1.610(d). At the hearing, counsel for the mother mainly challenged the validity of the ex parte order, asserting that it: (1) was improperly based on an unverified complaint without affidavits, (2) contained no findings concerning immediate and irreparable harm, (3) gave no reasons why advance notice was not given, and (4) was not properly served on the mother. Counsel for the father informed the court that the father was prepared to testify. The mother's attorney protested that the parties were "not here to have his client give testimony. It is not an evidentiary hearing." He further informed the court that the mother was not present because he had advised her not to attend the hearing since it was not an evidentiary hearing. Over objection, the father was sworn in and testified.
After taking the father's testimony and hearing argument from both sides, the trial judge denied the mother's motion to dissolve the ex parte pick-up order. He also ordered the mother to attend a DUI Consultant and Parenting Education course. On appeal the mother argues that the March 12 ex parte order was fatally defective and that she was denied due process when she was not afforded an opportunity to be heard before the court entered its order denying the motion to dissolve the ex parte order.
For a party to obtain a temporary modification of custody, he or she must prove that: (1) a substantial change in the condition of one or both of the parties has occurred, and (2) the best interests of the child will be promoted by the change. Wilson v. Roseberry, 669 So. 2d 1152 (Fla. 5th DCA 1996). Generally, both parties must be given an opportunity for a full hearing where the parties and their witnesses are given an opportunity to testify and be heard. Id.
Entry of an ex parte order which temporarily changes custody may be warranted under certain circumstances, such as where "a child is threatened with physical harm or is about to be improperly removed from the state."
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