MARY RACE, INDIVIDUALLY AND AS NEXT FRIEND OF SEAN SULLIVAN, A MINOR CHILD, APPELLANTS/CROSS-APPELLEES,
v.
PATRICK JOSEPH SULLIVAN, APPELLEE/CROSS-APPELLANT
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In this paternity action, the court upheld the trial court's award of shared parental responsibility to both parents despite the mother's argument that shared parental responsibility cannot apply to unmarried parents. The court reversed only the partial award of attorney's fees and remanded for a proper hearing on that issue.
Shared parental responsibility is applicable to unmarried parents in paternity actions under section 61.13(2)(b)(2), Florida Statutes, even though chapter 742 governing paternity suits is silent on the matter. The trial court erred in awarding only a portion of claimed attorney's fees without a hearing or findings.
[1] Shared parental responsibility is applicable to non-married parents under Florida law.
[2] A court's award of attorney's fees must be based on a hearing and findings, not solely on the acquiescence of counsel.
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“The shared parental responsibility law, adopted in 1982, is applicable to non-married parents notwithstanding that it does not specifically so provide.”
Establishes the core holding that shared parental responsibility applies to unmarried parents despite statutory silence
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Join FLexlaw to unlock all legal intelligenceMary Race and Patrick Joseph Sullivan had a child together while unmarried. The father admitted paternity and agreed that the mother should be the pri…
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STONE, Judge.
The final judgment in this paternity action orders shared parental responsibility. Chapter 742 of the Florida Statutes, governing paternity suits, is silent as to shared parental responsibility, which is authorized only pursuant to section 61.13(2)(b)(2), Florida Statutes. The Appellant/mother contends that shared parental responsibility cannot be applied where the parties are not married, particularly where the father has not otherwise sought sole custody by claiming the mother is unfit. The father admitted paternity and agrees that the mother should be the primary residential parent.
We reject Appellant’s argument that the court was required to award her custody unless she is found to be unfit. The shared parental responsibility law, adopted in 1982, is applicable to non-married parents notwithstanding that it does not specifically so provide. Stepp v. Stepp, 520 So. 2d 314 (Fla. 2d DCA 1988); In re S.M.H. 531 So. 2d 228 (Fla. 1st DCA 1988); Barnes v. Frazier, 509 So. 2d 401, 402 (Fla. 5th DCA 1987); Collinsworth v. O’Connell, 508 So. 2d 744 (Fla. 1st DCA 1987). Contrary to Appellant’s argument, this Court has not previously rejected the application of shared parental responsibility to non-married parents. We have considered our opinion in Allen v. Childress, 448 So. 2d 1220 (Fla. 4th DCA 1984), and deem it inapposite.
The issues in Allen concerned the admissibility of evidence and custody. There, this Court applied established law in recognizing that, under the statute, there must be a showing that a mother is unfit in order to award custody to an unmarried father. However, the application of section 61.-13(2)(b) to actions under chapter 742 was not raised in that case. We distinguish it here because in Duncan v. Department of Health and Rehabilitative Services, 589 So. 2d 982 (Fla. 4th DCA 1991), the dissenting opinion suggests the necessity, on a related issue, to recede from Allen.
The issues in Duncan involved burden of proof. Although Duncan was a per curiam affirmance, it is clear from reading the concurring and dissenting opinions together that this Court recognizes that the appropriate standard to utilize in considering custodial issues, such as are addressed in this case, is the “best interest” of the child. Interestingly, although not addressed, it appears that the shared parental responsibility statute was applied without issue in Duncan. In Duncan, the question presented involved the child’s “primary” residence, a subject matter only pertinent in an award of shared responsibility. Similarly, in Rhodes v. Wall, 514 So. 2d 437 (Fla. 4th DCA 1987), where the only issue was one of pleading, the opinion assumes that shared parental responsibility would be applied by this Court if properly raised. Here, Appellee did responsively ask for its application.
The trial court did err, however, by awarding only a portion of the Appellant’s claimed attorney’s fees. The award was an apparent attempt by the court to resolve the attorney’s fee issue by securing the acquiescence of the father’s attorney, without conducting a hearing or making findings. E.g., Robbie v. Robbie, 591 So. 2d 1006 (Fla. 4th DCA 1991). Appellee argues that Appellant’s counsel must have agreed to the attorney’s fees amount determined by the court as there was no objection raised when the court first announced the figure. However, this is an insufficient basis for concluding, without more, that the Appellant concurred in the court’s decision. See Loss v. Loss, 608 So. 2d 39 (Fla. 4th DCA 1992), opinion clarified in part on denial of rehearing, 17 Fla.L.Weekly 2473 (Fla. 4th DCA Oct. 28, 1992).
Therefore, we reverse the final judgment with respect to its award of fees and remand for a new hearing on the amount of fees to be awarded Appellant. As to all other issues raised, we find no reversible error or abuse of discretion and affirm.
GLICKSTEIN, C.J., and DELL J., concur.
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Adair v. Adair, 720 So. 2d 316 (Fla. 4th DCA 1998)…See Ross v. Bandi, 566 So. 2d 55, 55 (Fla. 4th DCA 1990). The trial court is charged with determining matters relating to the custody of minor children in accordance with their best interests. See § 61.13(2)(b), Fla. Stat. (1997); Race v. Sullivan, 612 So. 2d 660, 661 (Fla. 4th DCA 1993). Section 61.13(3) provides a list of factors which the trial court should evaluate in considering issues of shared parental responsibility and primary physical residence. However, there is no statutory requirement that the t…
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Spence v. Stewart, 705 So. 2d 996 (Fla. 4th DCA 1998)…tion of custody in a paternity action on the same footing as a determination of custody in a dissolution of marriage case. We therefore applied the shared parental responsibility law to such determinations. See id. at 399; see also Race v. Sullivan, 612 So. 2d 660 (Fla. 4th DCA 1993); Moore v. Trevino, 612 So. 2d 604 (Fla. 4th DCA 1992). Thus, matters involving custody and visitation in paternity actions should be based on the best interest of the child, as they are in dissolution proceedings. See Privette v.…
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Kochinsky v. Moore, 698 So. 2d 397 (Fla. 4th DCA 1997)…f marriage. Moreover, we have held that the shared parental responsibility law, section 61.13(2)(b)(2), Florida Statutes, is applicable to non-married parents notwithstanding the fact that the paternity statute does not so provide. Race v. Sullivan, 612 So. 2d 660, 661 (Fla. 4th DCA 1993). Thus, we have applied chapter 61 to paternity cases where the issues of the physical residence and parental responsibility are concerned. There is every reason to also apply the UCCJA to paternity actions. It is not unthink…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dwyn Daniels Robbie v. Robbie, 591 So. 2d 1006 (Fla. 4th DCA 1991)
- Collinsworth v. O'Connell, 508 So. 2d 744 (Fla. 1st DCA 1987)
- Jackson v. State, 509 So. 2d 401 (Fla. 2d DCA 1987)
- In the Interest of S.M.H., 531 So. 2d 228 (Fla. 1st DCA 1988)
- Stepp v. Stepp, 520 So. 2d 314 (Fla. 2d DCA 1988)
- Mahler v. Mahler, 608 So. 2d 39 (Fla. 1st DCA 1992)
- Loss v. Loss, 608 So. 2d 39 (Fla. 4th DCA 1992)
- Allen v. Childress, 448 So. 2d 1220 (Fla. 4th DCA 1984)
- Rhodes v. Wall, 514 So. 2d 437 (Fla. 4th DCA 1987)
- Duncan v. Dep't OF Health & Rehabilitative Servs. & Jo Anna Gibson, 589 So. 2d 982 (Fla. 4th DCA 1991)