What happens if you have an Order adjudicating issues not presented in pleadings? Fundamental Due Process?by j c.williamslaw on 09/25/16
The appellate court reversed a trial court order temporarily giving former husband custody of the spouses’ minor child after finding that former wife was denied due process. Disputes between the spouses under an earlier time-sharing order prompted former husband to move for enforcement, contempt, and psychological evaluations. He also petitioned for modification of the time-sharing order. Former wife opposed the motions and moved to dismiss the petition. The motions were set for hearing but the petition was not. The trial court did not find former wife in contempt nor did it find a psychological evaluation was necessary; nevertheless, it ordered a temporary change in residence from former wife to former husband. An order adjudicating issues not presented by the pleadings or noticed to the parties denies fundamental due process and constitutes reversible error. The appellate court noted that a change in residence is “not an analysis of whether the new home would be better—there must be a determination of ‘significant inadequacy in the care provided by the custodial parent’”.