It is widely recognized that, when it comes to family law matters, legal parents of a child are the only individuals who have the right to make decisions for and raise the child. In fact, a court will generally not recognize the rights of third parties, such as grandparents or stepparents, if they have not already adopted the child. While third parties may have no parental rights, there are times when the court will allow temporary custody in order to provide for the children.
Custody in Florida
While Florida does not generally use the term custody when discussing parental rights, the terms parental responsibility and timesharing are similar to both legal and physical custody. In Florida, when making a custody determination, courts will, absent an agreement stating otherwise, determine the parental responsibility each party will have, which involves the ability to make decisions affecting the life of the child, such as places of education, religious upbringing, medical treatment, and more. In addition, courts will also determine Typically, the court will be in favor of an equal split between parents, absent justification for an unequal split of either parental responsibility or timesharing. While Florida law does not refer to custody as a majority of jurisdictions do, it does provide for a form of custody referred to as temporary custody.
Just as its name implies, temporary custody is supposed to be a temporary solution to a problem without affecting or outright altering the parental rights of the child’s legal parents. Temporary custody is regulated under Chapter 751 of the Florida Statutes. As listed in the statute, the purpose of the creation of temporary custody is to recognize and provide protections for minor children who are living with extended family. While it is not uncommon for people to live in a traditional family, with one or two parents raising the children, in some situations it may be necessary for that child to be raised by extended family, such as grandparents, or aunts or uncles.
At this point, you might be wondering what the benefit is to get temporary custody, if it will not be permanent. An individual who obtains temporary custody can obtain a number of benefits when it comes to the welfare of the child, and will be able to make decisions as though he or she had parental rights over the child, including:
- Consenting to medical treatment;
- Obtaining medical and/or school records;
- Enrolling the child in school; and
- Consenting to participation in school activities.
Not only will this allow the child to lead a normal life under the care of an extended relative, it will also allow the extended relative to freely make necessary decisions when it comes to the welfare of the child. In order to obtain temporary custody, the first thing that must be done is evaluate the qualifications of the person or persons who wish to obtain temporary custody.
Who May Obtain Temporary Custody
One of the first requirements to obtain temporary custody over a child is that the person seeking temporary custody must be an adult, or an emancipated minor. In addition, the person seeking temporary custody must also be an extended family member or a stepparent of the minor child. The classification of extended family members can contain a number of individuals, but is generally limited to people related to the minor children within the third degree by blood or by marriage.
This includes, but is not limited to:
- Nieces or nephews,
- Uncles or aunts,
- Grandparents, and
- First cousins.
As for stepparents, while it may seem like a simple determination, the court still requires that in order to eligible for temporary custody, the stepparent must be currently married to the parent of the child, and must not be involved in any litigation, either civil or criminal, against the parent of the child.
Once the petitioner has been identified as a qualified person, the temporary custody process can begin.
Temporary Custody Process
In order to obtain temporary custody over a minor child, you must first file a petition with the court. In filing the petition, the petitioner will need to include information, which includes:
- The names, dates of birth, and addresses of the children;
- The names of the parents;
- The name of the person seeking temporary custody;
- The petitioner’s relationship with the minor child; and
- The length of time the petitioner is seeking to have custody over the minor child.
In addition, the petitioner must also state whether he or she is aware of any protective orders entered against either parent, and whether there is an order for child support against either parent. Petitioners may also request to receive child support for the duration of their temporary custody, and can even request to receive all or part of a parent’s existing child support payments. Whether the court will grant such a request is another issue, and depends entirely on the facts of the case.
Much like with adoption, the petitioner will need to either obtain the consent of the parents, or show why the consent of the parents is not necessary. If a parent chooses to challenge the petition, then the court will have a hearing to determine whether temporary custody will be granted.
As with any other family law matter, obtaining temporary custody over a child can be a complicated process, and parties can overlook vital details if they choose to file their petition without assistance. Working with a dedicated, experienced attorney can help parties avoid common mistakes.