Marchman Act Hearing: When the Person Does Not Attend

If the person named in a Marchman Act petition does not show up, the judge decides what happens next. The court may reschedule the hearing, order steps to bring the person in, or enter other orders the statute allows. No single result is automatic.

This page explains those possibilities in plain terms. For the full picture, read our involuntary commitment for addiction guide.

Why Attendance Matters at a Marchman Act Hearing

Attendance matters because the statute addresses when the respondent must be present at the hearing. The respondent is the person the petition is about. Under Fla. Stat. § 397.6957, the respondent must be present unless the court finds a knowing, intelligent, and voluntary waiver, or finds that presence is inconsistent with the person’s best interests or likely to be injurious to self or others.

Several kinds of people can file a petition for an adult. Florida law sets out who may file, but the court decides whether a particular petitioner qualifies. The court may consider relevant evidence, including testimony from family members who know the person’s history.

Absence is not a simple choice for the court. The judge must find one of the listed reasons before excusing the respondent from the hearing. Keep in mind that the court decides the outcome. This page explains the possibilities, not a predicted result.

What the Statute Says About Notice and Appearance

The statute requires that copies of the petition and notice of the hearing go to the people it names. Those include the respondent, the petitioner, the respondent’s attorney if known, and anyone else the court directs. The statute also provides for a summons for the person whose admission is sought, under Fla. Stat. § 397.68151.

The statute also sets a short step for service. How your case moves depends on the court and its rules.

Proof of notice may be filed in the court file. Keep copies of the clerk’s notice, any service paperwork, and dates of prior contact. For how petitions move through the system, read how Florida law forces addiction treatment.

Steps a Court May Take When the Respondent Does Not Appear

When the respondent does not appear, the judge may order steps the statute allows. These are possibilities, not automatic steps. Under Fla. Stat. § 397.6818, if the respondent does not appear for any reason, including lack of service, the court may issue or reissue an ex parte assessment and stabilization order. Under that statute, the order is described as valid for 90 days, and the court’s discretion and the circumstances of the case may affect how it is applied. Under that statute, the court may issue that order only if it reasonably believes the commitment criteria are met and a substance abuse emergency exists, and other requirements may also apply.

Other steps are possible. The judge may also order a law enforcement officer or designated agent to take the person into custody for evaluation.

The statute also allows a preliminary commitment order for further evaluation. That applies if evidence indicates the respondent will not voluntarily appear (§ 397.6957). Questions about subpoena rules are a separate matter. Look to the governing statute and court rules for your case.

Rescheduling and Continuances

The statute provides that the court generally schedules the hearing within 10 court working days unless a continuance is granted, subject to the court’s schedule and discretion (§ 397.68151). A continuance is a postponement the court grants.

If an assessment order is issued and the respondent is present, the statute provides that the hearing “shall be continued for no more than 10 court working days,” subject to the court’s schedule and discretion. The same is true when there is proof of service or the respondent’s location is known. Under the statute, the assessment order is described as valid for 90 days, subject to the court’s discretion.

No lawyer can set the court’s calendar or promise a new date. If the court sets one, write it down. Share it with everyone the notice covers.

Possible Outcomes When the Respondent Is Absent

The court decides the result from the statute, the evidence, and its own discretion. The result depends on the court’s discretion and the circumstances of each case. Possibilities include continuing the hearing, entering an ex parte order, entering a preliminary commitment order, or dismissing the case. Fla. Stat. § 397.6957 provides that if the respondent remains unassessed after 90 days, the court shall dismiss the case, as the statute’s text states. How the court applies that provision depends on the circumstances of each case.

Appellate decisions also address who must present the case. In J.C. v. State, the Fifth District noted that the court failed to follow the applicable statute by essentially functioning as the absent petitioner. It reversed an order where the trial court questioned the only witness while the petitioner was absent. The Fifth District applied that reasoning again in C.W.R.K. under the 2023 statute.

The Fourth District reached a different result in J.J.J. v. D.G. and certified conflict. Treat the petitioner-must-present rule as Fifth District law, not statewide law. The 2024 amendments may also affect the dispute. The statute gives a respondent the right to counsel at every stage, as set out in § 397.681. For how evidence reaches the court, see preparing evidence for a petition.

How Family Members Can Prepare for a Hearing That May Be Affected by Nonappearance

Start by gathering the core papers in one folder. That means the petition, the clerk’s notice, proof of service, and any treatment history you already have, with dates. Confirm the time and courtroom with the clerk of the court handling the case. Don’t rely on memory or secondhand reports.

Court records in these cases are confidential. The clerk may release them to listed people, including the petitioner and the respondent’s attorney (§ 397.6760). Testimony must be given under oath, the proceedings must be recorded, and the respondent may refuse to testify (§ 397.6957).

A witness who plans to attend remotely must give the parties relevant documents by the close of business the day before the hearing. Where the person is physically located matters at filing. In J.P. v. J.N., the Fifth District held that filing in the wrong county did not divest the circuit court of jurisdiction. The defect is one of venue. If the person is located or taken into custody, share accurate, documented location information with the court.

Talk Through Your Situation With Robinson Casey

If the person named in your petition has not appeared, you face a decision about your next step. Robinson Casey limits its practice to Marchman Act petitions and guardianship matters. The firm serves families in South Florida, including Miami-Dade, and statewide. Robinson & Casey is responsible for this page. Some matters may be referred to another lawyer or firm if appropriate.

Can the court act if the respondent does not appear?

The court may act, but only in the ways the statute allows. What it does depends on the petition, the notice record, and the judge’s discretion.

Does the petitioner have to attend?

In C.W.R.K. v. Stewart Marchman Act Behavioral Healthcare, the court noted that the trial court failed to follow the governing statute when, in the absence of the petitioner, it called and questioned the health care professional who executed the involuntary services certificate.

Can a Marchman Act hearing be rescheduled?

It can be, when the court grants a continuance or the statute requires one. The new date depends on the court’s calendar and discretion.

If the person named in your petition has not appeared and you’re unsure what the court may do next, you don’t have to sort it out alone. Call (561) 849-4149 or request a consultation.