In Florida, there are four ways to get custody of a child that is not your own: 1) Adoption, 2) Appointment of a Guardian, 3) Intervention by the State Department of Children and Families in a dependency action, and 4) Temporary custody under Chapter 751.
The first step in seeking any kind of custody is usually gaining temporary custody. Typically, temporary custody can be granted routinely if both parents consent to the grant of temporary custody. This is very common for military families or families that are undergoing a temporary crisis.
If the child lives in Naples, Florida, or lived in Naples Florida for at least six months during the last six months the jurisdiction for this action typically will be in Collier County.
Only “an extended family member” may bring a petition for temporary custody in the Florida courts. Fla. Stat. Sec. 751.02 to 751.03. This includes grandparents, cousins, aunts and uncles, siblings or half siblings.
If you are not a relative of the child, you cannot ask for temporary custody under Chapter 751 and must proceed via adoption or guardianship under chapter 744.
If only one parent consents to the temporary custody but the other parent cannot be found, temporary custody can still be granted as long as you have diligently searched for the missing parent.
If a parent formally objects to a grant of temporary custody (or any custody) then that non-parent will not be granted custody unless there are extreme circumstances. A parents’ right to be a parent and have control of their child’s life has been held by both the Florida and United States’ Supreme Courts as a fundamental right and therefore cannot be usurped for almost any reason.
The courts still must find that the grant of temporary is 1) consented to by the parents and 2) in the best interests of the child. This is done through a hearing where evidence is presented as to why this award of temporary custody would be in the best interests of the child. The evidence is almost always just testimony from the petitioner (the person seeking temporary custody).
Temporary custody can be terminated very easily by a parent disavowing their consent and reinstating their rights. The facts would have to be extreme for a court to continue a temporary visitation after the disavowal of a parents’ consent.
For example, a parent who had never met the child could not just swoop in and take custody of the child from a grandmother with temporary custody. The parent’s rights to their children are fundamental constitutional rights so, in cases like this, the court will often set up a transition plan.
In the case where a parent has been found to be unfit, the parent must simply prove their fitness to reinstate their rights and terminate the temporary custody order.
In lieu of this concept that temporary custody competes with the parents’ custody the legislature changed the statute so that temporary custody could be considered “concurrent.” This essentially turns the temporary custodian into a 3rd parent. There is, however, no statute available to direct concurrent custodians and parents in the event that they disagree upon something related to the welfare of the child.
In lieu of temporary custody, a non-parent can proceed under Chapter 744 of the Florida Statutes and ask for guardianship. Guardianship is almost always pursued in cases where the parents are dead, incapacitated or unavailable. Guardianship is also used in cases where a child is to receive some kind of large settlement and a non-interested third party is needed to oversee the money which the child will receive until that child turns 18.
If you are looking to take custody of a child that is not your biological child, then I know you’re doing things from the heart and for the right reasons. Please contact my Naples, Florida family law office so I can help you and help this child.