The Palm Beach Child Custody Lawyers of Nugent Zborowski & Bruce recently reviewed the Fourth District Court of Appeals opinion in Norberg v. Norberg, 37 Fla. L. Weekly D415a (Fla. 4th DCA Feb. 15, 2012).

In Norberg, amongst other things, the trial court modified the parties’ custody/timesharing schedule during a hearing involving the former wife’s non-payment of certain child care expenses.  The hearing was based on the former husband’s motion for contempt, which did not contain any request for a modification of custody.  After an evidenciary hearing, which was not attended by former wife, the trial court modified the parties’ timesharing schedule.

The former wife appealed, and the Fourth District Court of Appeal reversed, finding that it is error for a trial judge to modify timesharing absent a pleading requesting the relief:

We do find error, however, in the trial court’s modification of visitation. In the context of modification of visitation rights, we recently said:


“It is well settled that an order adjudicating issues not presented by the pleadings, noticed to the parties, or litigated below denies fundamental due process.” Neumann v. Neumann, 857 So.2d 372, 373 (Fla. 1st DCA 2003); accord Mizrahi v. Mizrahi, 867 So.2d 1211, 1213 (Fla. 3d DCA 2004) (“Due process protections prevent a trial court from deciding matters not noticed for hearing and not the subject of appropriate pleadings.”). Therefore, “Florida courts have repeatedly held that it is a violation of a parent’s due process rights for a court to modify visitation in a final judgment unless the issue of modification is properly presented to it by written pleadings, noticed to the parties, or litigated below.” Foerster v. Foerster, 885 So.2d 927, 929 (Fla. 2d DCA 2004).

Albert v. Rogers, 57 So. 3d 233, 236-37 (Fla. 4th DCA 2011). Having modified visitation without any pleading requesting the same, the court violated the wife’s due process rights. That portion of the order is therefore reversed and remanded to strike those portions of the order modifying visitation.

Click here to see the full text of the appellate court’s decision in Norberg v. Norberg.

Click Florida Child Custody Information or call 561.844-1200 to speak to an attorney with the Palm Beach office of Nugent Zborowski & Bruce for more information about modifying child custody schedules.