Modification of Visitation Order: Requires Proper Notice and a Proof of a Substantial Change in Material Circumstances and that Modification is Required to Protect the Child’s Best Interests

Florida Department of Children and Families, v. P.I., the Mother, and M.H., the Father, 2017 WL 2265372 (Fla. 3d DCA)

At the shelter hearing, the court ordered no contact with the parents based on explicit findings of “egregious physical abuse” by the mother and “failure to protect” by the father. The children were placed in the care of a great aunt. Thereafter, a “dependency petition filing hearing” was held at which the parents were to be served with the petition for dependency, confer with their respective attorneys, and determine if they wished to plead to the petition or try to resolve it at another hearing. The transcript of the hearing showed that the judge acknowledged this was the sole purpose of the hearing, that any denial of the petition was premature as arraignment was set for the following week.

During this pre-arraignment hearing, the parents asked to discuss visitation. The Department objected to addressing the issue of visitation because the hearing was merely to serve the dependency petition, the parents had not filed any motion for modification of visitation, and no notice was provided to DCF that visitation would be challenged. Over the Department’s objection, the trial court granted both parents supervised visitation. The Department filed a Petition for Writ of Certiorari asking the appellate court to quash the visitation order.

In granting the Department’s Petition, the Third DCA held that the trial court erred by entertaining modification of visitation without proper notice to DCF, without any proof of substantial change in circumstances in the two weeks since the shelter hearing to justify granting visitation, and without argument that a contravening visitation order would be in the best interests of the children.

Practice Tip: In a footnote, the court noted, “In light of the statutory obligations and clear case law on the issue of modification of visitation, it was inappropriate of counsel to tell the judge that “I don’t have to file a motion for every little thing,” in response to DCF’s objection that it had not been properly noticed.

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