DELORES HARKNESS, APPELLANT,
v.
SAMMIE L. HARKNESS, APPELLEE
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In this marriage dissolution appeal, the Florida appellate court reversed the trial court's award of child custody to the maternal grandmother because the grandmother was not a party to the lawsuit, proper pleadings were not filed, and neither parent was found unfit. The court held that grandparents lack standing to seek custody in dissolution cases absent proper procedures and a showing of parental unfitness.
The trial court erred in awarding custody to the grandmother. Grandparents lack standing to seek custody in dissolution cases under Chapter 61 unless they file proper pleadings, are joined as parties, and demonstrate the parents are unfit or that parental custody would be detrimental to the child's welfare. The case must be remanded for the trial court to determine primary residency between the fit parents according to statutory and equitable principles.
[1] A court errs in awarding custody of children to a maternal grandmother when the pleadings do not seek such an award, the grandmother is not a party to the lawsuit, and it…
[2] Grandparents lack standing to seek custody of a child in a dissolution case unless they have had custody and are properly joined as parties through appropriate pleadings.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Grandparents do not have any standing to seek custody of a child in a dissolution case pursuant to Chapter 61. If they have had custody of the child, then they may be entitled to notice and an opportunity to be heard. Through filing proper pleadings with the court, they may be granted custody if the child is dependant, or the parents unfit.”
Establishes that grandparents lack standing to seek custody in dissolution cases without proper pleadings and party status
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Join FLexlaw to unlock all legal intelligenceA marriage dissolution case involved a custody dispute where the trial court awarded custody of the children to the maternal grandmother. Neither pare…
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DAUKSCH, Judge.
This is an appeal from a marriage dissolution judgment. The issue on appeal concerns the award of custody of the children to the maternal grandmother. Because the pleadings do not seek an award of the children to the grandmother and because the grandmother was not a party to the lawsuit and because it was not alleged nor' proved that the parents are unfit to share the parental responsibilities the court erred in giving custody of the children to the grandmother. In Cherry v. Cherry, 508 So. 2d 782, 783-784 (Fla. 5th DCA 1987), this court said:
Grandparents do not have any standing to seek custody of a child in a dissolution case pursuant to Chapter 61. If they have had custody of the child, then they may be entitled to notice and an opportunity to be heard. Through filing proper pleadings with the court, they may be granted custody if the child is dependant, or the parents unfit. Based on their willingness to take custody and their fitness, an order granting custody to grandparents may be proper. However, proper pleadings and joinder of the grandparents as parties are essential.
... In a custody dispute between a natural parent and another person, the rights of the parent are paramount unless there is a showing the parent is unfit, or that for some substantial reason, the parent’s custody will be detrimental to the child’s welfare. A person who is not a parent has a much heavier burden of proof to sustain a modification of custody in his favor against the parent, in contrast with the parent in a dissolution context who prevails in a custody matter over another parent, [footnotes omitted].
It is our view of the evidence in the record that both parties are fit for sharing all parental responsibilities, so it is incumbent now upon the trial judge to determine with which parent the children should reside and set the other responsibilities in accordance with the statute and equitable principles. § 61.13, Fla.Stat. (1987).
The judgment as to child custody only is reversed and this cause remanded for further proceedings to determine the primary residency and parental responsibilities.
REVERSED AND REMANDED.
ORFINGER and DANIEL, JJ., concur.
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Citator
Cited By
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LEE v. Meeks, 592 So. 2d 282 (Fla. 1st DCA 1991)…custody be invested in appellants. In Florida, grandparents do not have legal standing to seek custody of a child in a dissolution case. § 61.13(2)(b)2.c., Fla.Stat. (1989); Ruyle v. Murphy, 422 So. 2d 318 (Fla. 1st DCA 1982); Harkness v. Harkness, 531 So. 2d 749 (Fla. 5th DCA 1988); Cherry v. Cherry, 508 So. 2d 782 (Fla. 5th DCA 1987). Section 36-6-101(a), Ten [*289] nessee Code Annotated (1991), provides that in a suit for annulment, divorce, or separate maintenance, where custody of a minor child or minor…1 / 2
Authorities Cited
- Cherry v. Cherry, 508 So. 2d 782 (Fla. 5th DCA 1987)