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Part 1: Can a Florida court award custody of a child to another family member?

| May 24, 2021 | Child Custody, Parental responsibility |

While people think of child custody disputes as being between the two parents of a child, in some situations Florida law provides for other immediate or extended family members to step in to take responsibility for a child’s care. This is the first of a three-post series on those circumstances.

Constitutional considerations

Placement with a relative in a custody dispute, though, only happens when the extended family member (or other third party seeking custody) reaches a high legal bar. Namely, the U.S. Supreme Court has held that parents have a constitutional right to raise their own children. However, this right is not unlimited and may be restricted when children are in danger when in the care of parents.

Legal test for awarding custody to a nonparent relative

In Florida, because of this heightened constitutional interest of parents, to place a child with a third party, including a nonparent family member, the parents must be unfit and it must be detrimental to the child’s welfare to live with the parents. Florida courts have said this means that living with the parent or parents would “likely … produce mental, physical, or emotional harm of a lasting nature.”

After the nonparent seeking custody has shown parental unfitness or detriment to the child if they are placed with a parent, the court will look at the traditional best-interest-of-the-child test. Would placement with the extended family member be in the child’s best interests?

Inherent power of courts

The power of a Florida court to award parental responsibility to a nonparent relative comes from the “inherent jurisdiction to determine issues of custody,” the Florida Supreme Court has held. The court’s authority to grant custody to a relative does not depend on the legislature having passed a particular statute.

Parts 2 and 3 will explain other situations where nonparent family members obtain the right to provide primary care to a child.

 

 

 

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