The legal bond between a parent and child is one of the most protected relationships under the law. In Florida, the court cannot simply take away a parent’s time-sharing rights without following strict procedural rules designed to ensure fairness. A recent decision by the Third District Court of Appeal in Luna v. Hernandez (2025) serves as a powerful reminder that “due process” is not a mere formality—it is a constitutional requirement. For any parent facing a sudden loss of custody, a Tampa divorce lawyer is essential to ensuring that the court does not overstep its authority by making major life changes without proper notice.
In the case of Carolyn Luna and Jonathan Hernandez, the appellate court reversed a trial judge’s order that had suspended a mother’s visitation. The reason for the reversal wasn’t based on the facts of the parenting dispute, but on the fact that the mother was never told her custody was at stake before the hearing occurred. If you are involved in a high-conflict custody battle, the expertise of a Tampa divorce lawyer can protect you from these types of “procedural ambushes.”
The Facts of Luna v. Hernandez
The dispute between the Mother (Carolyn Luna) and the Father (Jonathan Hernandez) reached a boiling point when the Father made claims of parental alienation. Parental alienation is a serious allegation where one parent is accused of psychologically manipulating a child to turn them against the other parent.
Following these claims, the trial court held a case management conference. During this conference, the judge issued a nonfinal order that took drastic action:
- It suspended the Mother’s time-sharing entirely.
- It granted the Father exclusive time-sharing for a set period.
- It prohibited the Mother from having any contact with her son during that time.
The Mother appealed this order immediately. She argued that the hearing was supposed to be a simple case management conference—not a trial or an evidentiary hearing on custody. Because she had no warning that her right to see her child was on the line, she argued her due process rights were violated.
What is Due Process in a Custody Case?
In Florida family law, due process requires two things: Notice and an Opportunity to be Heard. As your Tampa divorce lawyer will explain, you must be given a clear “heads up” about exactly what is going to be discussed in court so that you can prepare your evidence, call witnesses, and hire an attorney.
In Luna v. Hernandez, the court held that the notice setting the case management conference did not “forewarn the parties they would be litigating a potential change in timesharing.” Because the Mother was given no warning that the custody of her child was at stake, the appellate court ruled the trial court’s order was invalid.
The Problem with Using Case Management Conferences for Custody
A case management conference is typically a procedural meeting where the judge and the attorneys discuss the schedule of the case, such as deadlines for discovery or setting a trial date. It is not an evidentiary hearing where the judge is supposed to make substantive rulings on the merits of a case.
A Tampa divorce lawyer knows that a judge cannot use a procedural meeting to make a permanent or even a long-term temporary change to a parenting plan. To change custody, the court must usually:
- Have a formal petition or motion filed by one of the parents requesting the change.
- Provide a specific “Notice of Hearing” that mentions custody/time-sharing as the topic.
- Conduct an evidentiary hearing where both sides can present testimony and cross-examine witnesses.
By skipping these steps, the trial court in the Luna case committed a “reversible error.”
Parental Alienation and Emergency Orders
The Father in this case was concerned about parental alienation, which is often treated as an emergency in family law. When one parent is actively destroying the child’s relationship with the other, a judge may feel a sense of urgency to step in and stop the damage.
However, even in emergencies, the law remains firm. A Tampa divorce lawyer can help a parent file an “Emergency Verified Motion” if a child is in immediate danger of harm. But even then, the court must follow specific rules for “ex parte” orders (orders signed without the other side present) and must hold a full hearing shortly thereafter. In the Luna case, the lack of notice made the judge’s sudden decision a violation of the Mother’s constitutional rights.
Lessons for Parents in Tampa
The Luna v. Hernandez decision provides several key takeaways for parents navigating the court system in 2025:
1. Know the Purpose of Every Hearing If your Tampa divorce lawyer tells you that you have a “Case Management Conference” or a “Status Conference,” you should generally expect a discussion about schedules, not a decision on where your kids will sleep tonight. If a judge starts making custody decisions during such a meeting, your lawyer must object immediately to preserve your rights for an appeal.
2. Pleadings Matter A judge cannot grant relief that wasn’t requested in a written document (a “pleading”). If the Father hadn’t filed a specific motion to suspend the Mother’s time-sharing, the judge had no legal authority to do so on his own.
3. The Right to an Evidentiary Hearing Before a child is removed from a parent’s care for a significant period (in one cited case, 94 days), the court must conduct an evidentiary hearing. This means the judge must listen to facts, not just the arguments of the lawyers.
How a Tampa Divorce Lawyer Protects Your Due Process
When a Tampa divorce lawyer represents you in a custody dispute, they act as a guardian of your procedural rights.
- Reviewing Notices: We carefully check every notice of hearing to ensure the other side isn’t trying to “sneak in” a custody argument at a procedural hearing.
- Filing Objections: If a judge begins to overstep, we provide the “contemporaneous objection” needed to win an appeal later.
- Demanding Evidence: We insist that the other parent actually prove their claims (like parental alienation) through expert testimony or credible evidence, rather than just accusations made at a conference.
The Role of Appellate Courts
The Third District Court of Appeal in this case did not look at whether the Mother actually committed parental alienation. They “expressed no opinion on the merits” of the custody decision itself. Their role was strictly to ensure the trial judge followed the rules.
This is an important distinction. Even if the judge’s decision was “right” for the child’s welfare, it was “wrong” because it was reached through a flawed process. As your Tampa divorce lawyer will tell you, a “win” obtained without due process is a temporary one, as it will likely be reversed on appeal, leading to more time and money spent in court.
Frequently Asked Questions
What is parental alienation? It is a strategy where one parent intentionally damages the relationship between the child and the other parent. In Florida, this is considered a form of child abuse and can be grounds for a judge to change the time-sharing schedule.
What is a case management conference? It is a meeting between the judge and the attorneys to discuss the progress of the case, resolve discovery disputes, and set future hearing dates. It is not intended for the judge to make final decisions on the merits of the case.
Can a judge take away my kids at a hearing I didn’t know about? No. Under the principle of due process, you must be given notice that custody is at stake and an opportunity to present your side of the story before a judge makes a substantial change to your parenting plan.
What should I do if a judge makes a surprise ruling at a hearing? You should have your Tampa divorce lawyerobject on the record for a lack of notice. If the judge proceeds anyway, you may have grounds for an immediate appeal or a petition for a “writ of certiorari” to have a higher court strike down the order.
Why did the mother win the appeal in Luna v. Hernandez? She won because the notice for the hearing did not mention that her time-sharing rights would be discussed. By suspending her contact with her son without warning, the trial court violated her constitutional right to due process.
Is an order suspending time-sharing “final”? In this case, the court ruled it was a “nonfinal, appealable order.” This means that even though the overall divorce case wasn’t over, the order regarding custody was important enough to be reviewed by an appellate court immediately.
Can a judge ever change custody without a hearing? Only in extremely rare emergency circumstances involving immediate physical danger to the child. Even then, a full hearing must be held very quickly (usually within days) to allow the other parent to defend themselves.
How does a Tampa divorce lawyer help in a parental alienation case? They can help hire a “social investigator” or a “guardian ad litem” to investigate the claims. They also ensure that any changes to the parenting plan are based on evidence and follow the correct legal procedures.
Conclusion
The stability of your relationship with your child depends on the court following the law. The Luna v. Hernandezdecision is a critical victory for parents, ensuring that they cannot be blindsided by life-altering custody orders. If you are involved in a time-sharing dispute or are being accused of parental alienation, you need a Tampa divorce lawyer who will fight for your rights and ensure that every hearing is conducted fairly and according to the rules of due process.
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Written by Damien McKinney, Founding Partner
Damien McKinney is the Founding Partner of The McKinney Law Group, bringing nearly two decades of experience to complex marital and family law matters. He is licensed in both Florida and North Carolina and has been repeatedly recognized as a Rising Star by Super Lawyers.