IN THE INTEREST OF A.W.P., JR., A CHILD. A.W.P., SR., APPELLANT,
v.
DEPARTMENT OF CHILDREN AND FAMILY SERVICES, APPELLEE
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A.W.P., Sr. appealed the circuit court's modification of his visitation from unsupervised to supervised, arguing both lack of proper notice and insufficient evidence. The appellate court reversed, holding that the Department failed to present evidence supporting its core allegation (cocaine use) and thus the modification order lacked evidentiary support.
The court reversed the modification order on the merits because the Department failed to present any evidence supporting its allegation of cocaine use. A party seeking to modify visitation in a dependency proceeding must prove both a substantial change in material circumstances and that modification is required to protect the child's best interests, and the Department's motion should have been denied for lack of evidentiary support.
[1] A party seeking to modify a visitation order in a dependency proceeding must prove a substantial change in material circumstances and that modification is required to pro…
[2] A court violates due process rights when it modifies visitation from unsupervised to supervised without providing the affected parent reasonable notice of the hearing.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“A party seeking to modify a visitation order in a dependency proceeding must meet the same burden that is applicable to modifications in domestic relations cases, that is, the party must prove that there has been a substantial change in material circumstances and that modification is required to protect the child's best interests.”
Establishes the legal standard for visitation modifications in dependency cases
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe Department of Children and Family Services sought to modify A.W.P., Sr.'s visitation with his child from unsupervised to supervised. The circuit c…
The full statement of facts, procedural history, and disposition for this case are member content.
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NORTHCUTT, Judge.
The Department of Children and Family Services concedes A.W.P., Sr.’s argument that his due process rights were violated when the circuit court modified his visitation with his child from unsupervised to supervised without giving him reasonable notice of the hearing on the matter. The Department asks that we remand for a properly noticed evidentiary hearing on its motion to modify the visitation, at which A.W.P., Sr. may present evidence on his behalf.
However, A.W.P., Sr. also contends that the court should have denied the Department’s motion on its merits because the Department failed to adduce sufficient evidence to support the modification.
We agree, and for this reason we simply reverse the order. A party seeking to modify a visitation order in a dependency proceeding must meet the same burden that is applicable to modifications in domestic relations cases, that is, the party must prove that there has been a substantial change in material circumstances and that modification is required to protect the child’s best interests. Green v. Dep’t of Health & Rehabilitative Servs., 696 So. 2d 1351, 1352 (Fla. 5th DCA 1997); see also Spano v. Dep’t of Children & Families, 820 So. 2d 409 (Fla. 3d DCA 2002).
In this case, the circuit court found that the father tested positive for cocaine in a random urine test. This finding was wholly lacking in evidentiary support. Although the Department alleged this fact in its motion to modify the visitation, and although it pressed for a ruling on its motion at the hearing, it presented no evidence whatever to support its allegation. For this reason, the court should have denied the motion.
Reversed.
FULMER and GREEN, JJ., Concur.
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In the Interest of A.W.P., JR. v. Dep't of Child. & Fam. Servs., 10 So. 3d 134 (Fla. 2d DCA 2009)…and KELLY, JJ„ Concur. . We also observe that this is not the first time during the course of these proceedings that the father has not been afforded due process regarding his visitation rights. See A.W.P., Sr. v. Dep’t of Children & Family Servs., 823 So. 2d 323 (Fla. 2d DCA 2002).…
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Fla. Dep't OF Child. & Families v. P.I., 219 So. 3d 266 (Fla. 3d DCA 2017)…tic relations cases, that is, the party must prove that there has been a substantial change in material circumstances and that modification is required to protect the child’s best interests. See In re A.W.P., Jr. v. Dep’t Children and Family Servs., 823 So. 2d 323, 324 (Fla. 2d DCA 2002) (remanding for properly noticed evidentiary hearing on a motion for modification of visitation, and to provide evidence of substantial change in material circumstances and proof that modification is in the best interest of th…
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J.J. v. Dep't of Child. & Families (Fla. 4th DCA 2021)…father any guidance on how to reinstate visitation; and (3) failing to make specific findings of fact and conclusions of law to support the two orders. 2 We agree with the concessions of error. See A.W.P. v. Dep’t of Child. & Fam. Servs., 823 So. 2d 323, 323-24 (Fla. 2d DCA 2002) (“A party seeking to modify a visitation order in a dependency proceeding must meet the same burden that is applicable to modifications in domestic relations cases, that is, the party must prove that there has been a su…
Authorities Cited
- Green v. Dep't of Health & Rehabilitative Servs., 696 So. 2d 1351 (Fla. 5th DCA 1997)
- In the Interest of BB. Rosemarie Spano v. Dep't of Child. & Families, 820 So. 2d 409 (Fla. 3d DCA 2002)