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Can an extended family member get access or custody of a minor child? Part 2

On Behalf of | Feb 28, 2022 | Child Custody, Grandparent rights, Visitation and time-sharing |

In part 1 of this post, we talked about Florida’s grandparent visitation law. In part 2, we will identify other potential routes for a child’s relatives willing to step up to help by taking on custodial responsibilities or regular visitation. Such relatives may include not only grandparents, but also adult siblings, aunts and uncles, cousins and others.

Grandparent visitation

As we discussed in part 1, parents have weighty constitutional rights to raise and guide their children, rights that can only be compromised in those situations when the welfare of the child is at risk. A Florida grandparent may ask the court for visitation rights in very limited circumstances.

Other than this narrow grandparental visitation, courts generally say that they do not have the power to grant visitation to other relatives or to people not related to the minor child, at least when there is one fit parent.

What about custody if the parents cannot keep kids safe?

When parents cannot safely care for their children, if a court terminates their parental rights or adjudicates a child dependent, the court may consider residential placement with a nonparent relative based on its “inherent jurisdiction to determine issues of custody,” according to the Florida Supreme Court in Richardson v. Richardson.

A dependent child is one who has no safe options for living with their parents or another custodian; whose parents have abandoned, abused, neglected or surrendered them for adoption or to a third party; or who is the victim of sexual exploitation with no one to appropriately care for them.

A relative may petition the court to become a party or participant in a dependency proceeding. In 2021, a Florida appeals court held in Interest of M.S. that a sibling had the constitutional right to a court hearing on whether the sibling’s participation in a dependency proceeding was in the child’s best interest.

Once a child is declared dependent, enhanced grandparent rights kick in and “permanent placement with a fit and willing relative” becomes a possibility.

In alternative scenarios where the court considers care for a child by a relative or another third party, often at issue is whether the parents are unable to provide care, are unfit or the child’s welfare would be threatened with the parents, whether the parents’ consent to the placement with a relative and whether the out-of-home placement would be in the child’s best interests.

Who can get concurrent or temporary custody?

Florida statute gives certain individuals already caring for a child not their own (or who have the parents’ permission to do so) the right to petition the court for concurrent (on top of parental custody) or temporary (instead of parental) custody while the third party is providing a home for the child away from their parents. Eligible people include relatives within the third degree to the parent, certain stepparents and “fictive kin,” nonfamily members with family-like, “emotionally significant” relationships with a child.

Concurrent or temporary custody gives the custodial person further rights vis-à-vis protecting the child like the right to make medical or educational decisions and to view certain of the child’s private records.

What about shelter care?

Shelter placement provides care for a child in an institutional setting or in someone’s home when it is too dangerous to stay with the parents and shelter care is in the child’s best interest. Relatives have priority over nonrelatives in shelter care.

Seek legal advice

These situations tend to be complex as well as emotionally fraught. If you are a relative or a concerned nonrelative, talk to a family lawyer about your options, whether one we have discussed or others. For example, might you consider options like petitioning for the termination of parental rights, adoption or guardianship. An attorney can also help negotiate an agreement with or seek the consent of parents for nonparent care or visitation.

Finally, if you are the parent of a child facing attempts by relatives to get time sharing rights, talk to legal counsel about your options if you oppose their attempts or about help negotiating an agreement with them if you are open to it.

(Interest of M.S. is available on Westlaw at 2021 WL 4806522.)

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