Snyder v. Snyder, 95-03375

• Decision Date: 16 February 1996
• Docket Number: No. 95-03375,95-03375
• Citation: 685 So.2d 1320
• Parties: 21 Fla. L. Weekly D508 Jennifer Gail SNYDER, Appellant, v. Richard P. SNYDER, Jr., Appellee.
• Court: Florida District Court of Appeals

Page 1320

685 So.2d 1320

21 Fla. L. Weekly D508

Jennifer Gail SNYDER, Appellant, v. Richard P. SNYDER, Jr., Appellee.

No. 95-03375.

District Court of Appeal of Florida Second District.

Feb. 16, 1996.

Dennis L. Avery of Avery, Whigham & Winesett, P.A., Fort Myers, for Appellant.

James Leray LeGrande of LeGrande & LeGrande, P.A., Fort Myers, for Appellee.

RYDER, Acting Chief Judge.

Jennifer Snyder attacks the court's denial of her motion to dissolve a domestic violence injunction and the award of temporary custody of the parties' two-year-old daughter, Kristen Snyder, to the paternal grandmother, Jan Kellog. The appellant contended that the court's order denied her right to due process of law and failed to consider the best interests of the child. The appellee counters that the appellant received a full hearing and that the trial judge acted within his wide discretion in the temporary placement of the child. Because we agree with the appellant that she was not afforded due process of law and that the judge failed to afford the parties due process or to fully consider the best interests of the child, we remand for further proceedings.

On May 31, 1995, the appellant filed a petition for injunction for protection against domestic violence pursuant to chapter 741, Florida Statutes (1993). She alleged that the appellee had stolen items from her home and that in the past, while intoxicated, he had hit her while she was holding the child. The court granted the injunction ex parte and set a hearing for June 9, 1995. At the hearing, the judge concluded that there was no actual violence, but that both partners had described a volatile situation which could get out of hand. He ordered that they both submit to drug screens and placed the child with the appellant. The judge had advised the parties at the June 9 hearing that the results of the drug screen would affect his decision on custody. The injunction was also extended until June 1, 1996.

On June 26, 1995, without motion, notice or hearing afforded the parties, the court amended the injunction to grant the paternal grandmother temporary custody of the child pending the parties' dissolution of marriage or a recommendation by AIM Target Programs, Inc. (AIM), which appears to be an evaluation and screening organization utilized by the court below. The court granted this relief upon the ex parte recommendation of the court's domestic violence family law investigator.

The appellant filed a motion to dissolve or modify the injunction, which was set for hearing on July 6, 1995. The domestic relations investigator presented affidavits of the appellant and another witness. The appellant admitted that she falsified the first drug screen and that she had had a drug problem four or five years earlier. The other affiant stated that she had shared a marijuana cigarette with the appellant approximately three weeks prior to June 9. The investigator did not contact the child and conducted no other investigation as to her welfare. A neighbor whose husband worked as a deputy sheriff with the appellee and who was friendly with both parties testified favorably concerning the appellant and her ability to care for the child. The results of the appellant's subsequent supervised drug screen were negative, and AIM's report indicated that there was insufficient evidence to assess any problematic alcohol or substance use or lack of anger control. No chapter 39 or chapter 61 proceedings were pending. The judge denied the motion to dissolve or modify the injunction.

Section 741.30(7)(a)3., Florida Statutes (1993), allows the court upon notice and hearing to grant, on the same basis as provided in chapter 61, an award of temporary custody with regard to the parties' minor child. The polestar for guidance in custody proceedings is the best interests of the child. Burgess v. Burgess, 347 So.2d 1078, 1079 (Fla. 1st DCA 1977). Section 61.13(3), Florida Statutes (1993),...