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Due Process

Each party is entitled to due process when presenting their case in front of a family law court. A recent Third District Court of Appeals case found that the trial court denied a Father his due process rights. In Cole v. Cole, the trial court held an evidentiary hearing on the request to modify timesharing. The Mother's direct examination consumed most of the first hearing day. On the second day, the Mother was cross-examined, one of the Father's witnesses testified briefly out of order, and then an expert took the stand until after 6:00 p.m. When the Mother's counsel rested, the judge announced he had heard enough, and proceeded to give his ruling over the Father's objection that he had yet to present his case. The appellate court found that this was error and reversed the judge’s ruling.

The appellate court concluded 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. The 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. Perhaps 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.

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