A trial court erred when it changed a child’s primary residence in an interim order where the father’s petition to modify the parenting plan was pending, the only relevant motion noticed for the hearing was a contempt motion, no evidence was taken, and the court made no finding of an emergency. The Fourth District Court of Appeal decided that on October 21, 2026, in Henry v. Rice, No. 4D2026-0854, and reversed.
The facts
The parents share one child. A 2024 final judgment of paternity gave them shared parental responsibility. The father lives in Indian River County and the mother lives in Orange County. After the judgment, the parties filed many post-judgment motions. On April 10, 2025, the father filed a verified motion for contempt and enforcement, change of placement, and attorney’s fees, alleging among other things that the mother had unilaterally unenrolled the child from his school. He asked to “flip” the parties’ timesharing. On July 30, 2025 he also filed a petition to modify the parenting plan and child support.
At a hearing in February 2026 on the father’s motion for contempt, the mother’s motion to strike and the mother’s motion for contempt, no evidence was presented. The trial court said it would not hear the contempt arguments because they had to be heard with the father’s petition, and said the parenting plan could not be modified without a supplemental petition. The court then entered an interim temporary timesharing order. It provided that the child would primarily reside with the father, that exchanges would occur at the Indian River County Sheriff’s Office, and that the mother’s timesharing would be exclusively in Indian River County even though she lives in Orange County.
The holding
Judge May wrote for the panel that “[d]ue process lies at the heart of this appeal.” Quoting Golden v. Bass, 194 So. 3d 1080 (Fla. 1st DCA 2016), the court said an order adjudicating issues not presented by the pleadings, noticed to the parties, or litigated below denies fundamental due process, and that a court violates due process when it “modifies visitation, changes primary residence, or alters child support when the notice of hearing does not include this issue.”
The court said the order modified timesharing without the required petition and went further, adding relief the court described as unrequested: the Sheriff’s Office exchange, the Indian River County-only condition on the mother’s timesharing, and a change in primary custody to the father. It relied on its own decision in Chevalier v. Emmerson, 300 So. 3d 217 (Fla. 4th DCA 2020), which held that a trial court abuses its discretion in temporarily changing custody where custody was already set by a judgment and a petition to permanently change it is pending, “unless there is a real emergency.” Here the father’s petition for modification was pending, the hearing was on the contempt motions, the trial court heard no evidence and made no finding of an emergency, and the trial court itself had said the parenting plan could not be modified without a supplemental petition. The court rested its decision on due process: the relief granted had no petition or notice behind it, because the only relevant motion noticed for the hearing was the father’s contempt motion. Chevalier and the absence of any emergency finding reinforced that conclusion.
What the opinion leaves open
A footnote acknowledges that a trial court may, at the request of the parent who did not violate the timesharing schedule, modify the parenting plan if that is in the child’s best interests, under section 61.13(4)(c)6., Florida Statutes. But the court said that can happen only when the parties present evidence on the child’s best interests, which did not happen here. Because the due process issue resolved the appeal, the court did not reach the mother’s other arguments about substantial change in circumstances and the lack of an evidentiary hearing.
Who decided it
Judge May wrote the opinion. Chief Judge Gerber and Judge Klingensmith concurred. The case was reversed and remanded.
The opinion is not final until the time to file a rehearing motion expires and any motion is decided.
Source: Henry v. Rice, No. 4D2026-0854 (Fla. 4th DCA Oct. 21, 2026). This article is general information, not legal advice.
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