In a child custody and visitation proceeding, the constitutional guarantee of due process dictates a full and fair opportunity to be heard in judicial proceedings. The failure to give a party the chance to present witnesses or testify violates this fundamental right. In Cole v. Cole, the Florida Court of Appeal recently stated: “…We conclude that in ruling, without giving the Father an opportunity to present evidence, the trial court abused its discretion and violated the Father’s right to procedural due process. The constitutional guarantee of due process dictates a full and fair opportunity to be heard in judicial proceedings. The failure to give a party the chance to present witnesses or testify violates this fundamental right. Henderson v. Lyons, 93 So. 3d 399 (Fla. 2d DCA 2012); see also Douglas v. Johnson, 65 So. 3d 605 (Fla. 2d DCA 2011); Smith v. Smith, 964 So. 2d 217 (Fla. 2d DCA 2007); Baron v. Baron, 941 So. 2d 1233 (Fla. 2d DCA 2006); Pettry v. Pettry, 706 So. 2d 107 (Fla. 5th DCA 1998).
‘[T]he right to be heard at an evidentiary hearing includes more than simply being allowed to be present and to speak. Instead, the right to be heard includes the right to ‘introduce evidence at a meaningful time and in a meaningful manner.’ Baron, 941 So. 3d at 1236 (quoting Brinkley v. County of Flagler, 769 So. 2d 468, 472 (Fla. 5th DCA 2000)). As Judge Orfinger stated in Pettry, 706 So. 2d at 108, ‘[p]erhaps the additional witnesses would not have impressed the court, but the husband had the right to present them and to argue his case at the conclusion of all the testimony.’ Accordingly, we reverse the judgment entered below and remand this cause for further proceedings. Upon remand, the trial court may, with the stipulation of the parties, re-open and conclude the prior evidentiary hearing, or, in the absence of such stipulation, must hold a new evidentiary hearing on the parties’ custody motions. See Alvord v. Alvord, 572 So. 2d 925, 926 (Fla. 3d DCA 1990) (stating a successor judge, who does not hear evidence heard by his predecessor, may only enter judgment upon a retrial or if the parties stipulate to a ruling based on the record of the prior proceedings). Reverse and remanded for further proceedings consistent with this opinion.”
To speak with a Singer Island, Florida, child custody and visitation attorney, contact Matthew Lane & Associates, P.A. at (561) 651-7273.