DANA MORITZ
v.
CHRISTOPHER STONECIPHER
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The appellate court reversed an order compelling a mother to re-enroll her child in a specific school. The court held that without a court order establishing the father's parenting rights, the mother, as the natural guardian of a child born out of wedlock, retained the right to make decisions regarding the child's primary residence and schooling.
No, the father cannot compel the mother to re-enroll the child in a specific school. Until a court order establishes the father's parenting rights, the mother, as the natural guardian, is entitled to primary residential care and custody, including decisions about schooling.
[1] A mother of a child born out of wedlock is the natural guardian and entitled to primary residential care and custody unless a court order states otherwise.
[2] An acknowledgment of paternity does not vest a father with custodial rights prior to a court order establishing such rights.
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“We reverse the order because, at the time it was entered, no order had established the father’s parenting rights. Consequently, the mother was entitled to primary residential care and custody of the child, which includes the decision as to where the child would attend school.”
This quote states the main reason for reversing the lower court's decision.
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Join FLexlaw to unlock all legal intelligenceFollowing the parents' breakup, the mother moved with their child to a different town and enrolled the child in a local school. The father filed an em…
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GROSS, J.
The mother appeals an order entered within a pending paternity action granting the father’s emergency motion to compel the mother to re-enroll the minor child in a Delray Beach elementary school.1 In accordance with section 742.10(4), Florida Statutes (2014), the father signed a voluntary acknowledgment of paternity at the child’s birth. No further orders were entered regarding the father’s parenting rights.
We have jurisdiction under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iii), as the determination of where the child goes to school is a “right or obligation” of a party “regarding child custody or time-sharing under a parenting plan.”
Following the parties’ breakup in 2022, the mother moved with the child to her parents’ home in Loxahatchee, about 23 miles away from Boynton Beach, and enrolled the second grader in school there.
An acknowledgment of paternity under section 742.10 creates a “rebuttable presumption” of paternity if unchallenged after sixty days. § 742.10(1), Fla. Stat. (2014). But that section does not vest the father with any custodial rights regarding the child.
Section 744.301(1), Florida Statutes (2014), states that “[t]he mother of a child born out of wedlock is the natural guardian of the child and is entitled to primary residential care and custody of the child unless the court enters an order stating otherwise.” This language was added to the statute in 1997. See Ch. 97-170, § 73, Laws of Fla. Application of this statutory language means that the father’s parenting rights in this case remained inchoate until recognized by a court order. At the time of the order in this case, no order had been entered that would impair the mother’s status as the “natural guardian of the child” who “is entitled to primary residential care and custody of the child.” When she moved to Loxahatchee and enrolled the child in school, she had the right to do so. This conclusion is consistent with Perez v. Giledes, 912 So. 2d 32 (Fla. 4th DCA 2005), where we recognized that
[t]he fact that Father has enforceable rights and obligations by virtue of his acknowledgement of paternity does not equate to his having a right to temporary custody superior to the mother’s prior to a court declaration to that effect.
Id. at 33; see also Nelson v. Mirra, 335 So. 3d 236, 238 (Fla. 5th DCA 2022) (noting that a father’s paternity status did not afford him custody rights when a trial court had not yet established them).
We distinguish Stewart v. Walker, 5 So. 3d 746 (Fla. 4th DCA 2009), as a case involving a father’s standing to bring a lawsuit for intentional torts. We also note that Stewart relied on cases decided prior to the statutory amendment to section 744.301(1) quoted above. See DeCosta v. N. Broward Hosp. Dist., 497 So. 2d 1282 (Fla. 4th DCA 1986); State v. Earl, 649 So. 2d 297 (Fla. 5th DCA 1995).
For these reasons, we reverse the order on appeal and remand to the circuit court for further proceedings consistent with this opinion.
Reversed and remanded.
CONNER and KUNTZ, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- DeCOSTA v. N. Broward Hosp. Dist., 497 So. 2d 1282 (Fla. 4th DCA 1986)
- Stewart v. Walker, 5 So. 3d 746 (Fla. 4th DCA 2009)
- State v. Earl, 649 So. 2d 297 (Fla. 5th DCA 1995)
- Jennalee K. Nelson v. Mirra, 335 So. 3d 236 (Fla. 5th DCA 2022)