IN THE INTEREST OF J.M.Z., A CHILD

Fla. 1st DCA | 1994-04-13
No. 93-2675
MICKLE and DAVIS, JJ., concur.
635 So. 2d 134 Florida District Court of Appeal, First District (1994) Caution
Cited by 14 cases

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Synopsis

The Florida District Court of Appeal reversed a trial court's award of custody to a paternal grandmother, holding that section 61.13(7) does not create an independent cause of action for grandparents to initiate custody proceedings, but rather only grants standing to intervene in existing family law cases.


Holding

Section 61.13(7) does not create an independent cause of action for grandparents to commence a custody proceeding. Rather, it grants grandparents standing only to intervene in existing chapter 61 proceedings. Therefore, once the trial court determined the child was not dependent under chapter 39, the grandmother lacked standing to pursue her custody claim.


Headnotes

[1] Section 61.13(7), Florida Statutes, does not create an independent cause of action for custody on behalf of a grandparent.

[2] Grandparents have standing under section 61.13(7), Florida Statutes, to intervene in an existing chapter 61 proceeding for the purpose of determining child custody.

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Key Quotes

“We find nothing in section 61.13, or, for that matter, any other provision within chapter 61, Florida Statutes, affording a child's grandparents the right to commence an independent action for custody.”

States the core holding that section 61.13(7) does not create an independent cause of action for grandparents

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Facts & Procedural History

J.M.Z., born in 1988, lived with her paternal grandparents on their Pennsylvania farm for at least four of her five years while her parents moved freq…

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Opinion of the Court
ERVIN, Judge.

ERVIN, Judge.

The natural parents of J.M.Z. appeal a final order, entered pursuant to section 61.-13(7), Florida Statutes (1993),1 designating the paternal grandmother the primary custodian of J.M.Z. They argue that section 61.-13(7) does not create an independent cause of action for custody on behalf of the grandmother. We agree, reverse and remand with directions.

J.M.Z., born on June 30, 1988, lived in an extended-family unit at her grandparents’ Pennsylvania farm where, for a portion of the time, the parents also resided. Out of necessity, the parents moved frequently in order to obtain work, and temporary arrangements were made which resulted in the child residing in her grandparents’ home for at least four of her five years. The parents, however, never overtly agreed to J.M.Z. staying with her grandmother on anything other than a temporary basis.

In the latter part of 1991, the child’s parents moved to North Carolina for employ ment and left the child with the grandmother for an extended visit. In October 1992, the grandmother relocated to Pensacola, taking J.M.Z. with her, and commenced an action for non-parental custody, pursuant to both chapter 39 and section 61.13(7), Florida Statutes.

Regarding the chapter 39 claim, the trial court found the grandmother had failed to establish by clear and convincing evidence that the child was dependent, as there was no evidence (1) that the parents had abused, abandoned or neglected J.M.Z., (2) that the parents were unfit, or (3) that the placement of J.M.Z. in her parents’ custody would be detrimental to her welfare. Consequently, the court denied the grandmother’s custody petition pursuant to chapter 39, but granted it under section 61.13(7), ruling that the award of custody to the grandparent was in the child’s best interest.

We find nothing in section 61.13, or, for that matter, any other provision within chapter 61, Florida Statutes, affording a child’s grandparents the right to commence an independent action for custody. Although Schilling v. Wood, 532 So. 2d 12 (Fla. 4th DCA 1988), was decided before the adoption of section 61.13(7), we consider its reasoning highly persuasive. Schilling held that a child’s grandparents lacked standing to initiate a custody proceeding against their grandchild’s father, who had not legally surrendered custody of the child, in a case wherein neither a chapter 61 dissolution nor a chapter 39 dependency proceeding had been initiated. Id. at 14. There is nothing in the subsequent enactment of section 61.13(7) compelling a different result. It is our view that subsection (7) merely grants standing to the grandparents to intervene in an existing chapter 61 proceeding for the purpose of determining custody of the minor child. Therefore, once the court below decided that J.M.Z. was not a dependent child, as defined in chapter 39, the grandmother lacked standing to continue her claim for custody.

In so concluding, we note that the stated purposes behind the enactment of chapter 61 are (a) preserving the integrity of marriage and safeguarding meaningful family relationships, (b) promoting amicable settlements or disputes that arise between parties to a marriage, and (c) mitigating potential harm to spouses and their children caused by the process of legal dissolution. § 61.001(2), Fla. Stat. (1991). Although we understand that this chapter is to be construed liberally,2 the explicit purposes do not encompass independent actions brought by grandparents to gain permanent custody of children over the parents’ objections.

REVERSED and REMANDED with directions that the order entered be vacated.3

MICKLE and DAVIS, JJ., concur. . Section 61.13(7) provides:

In any case where the child is actually residing with a grandparent in a stable relationship, whether the court has awarded custody to the grandparent or not, the court may recognize the grandparents as having the same standing as parents for evaluating what custody arrangements are in the best interest of the child.

No one has argued that the provisions of section 61.13(7) are inapplicable to the case at bar on the ground that they did not become effective until after the custody petition was filed.

. § 61.001(1), Fla.Stat. (1991).

. Based on our disposition of the above issue, we decline to consider the constitutional challenge raised by the child's parents.


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Citator

Cited By

  • Richardson v. Richardson, 766 So. 2d 1036 (Fla. 2000)
    …61.13(7) requires courts to place grandparents on equal footing with natural parents. Rather, the First District held there that the statute merely gives grandparents standing to seek custody of a minor child. See id. at 808; see also In re J.M.Z., 635 So. 2d 134, 135 (Fla. 1st DCA 1994).5 Under this construction of the statute, even though a court determines that the grandparent has standing under section 61.13(7) to seek custody, the court may still not intervene in a parent-child relationship or determine…
  • S.G. v. G.G., 666 So. 2d 203 (Fla. 2d DCA 1995)
    …custody to the grandparent or not, the court may recognize the grandparents as having the same standing as parents for evaluating what custody arrangements are in the best interest of the child. [*205] Appellant relies on In the Interest of J.M.Z., 635 So. 2d 134 (Fla. 1st DCA 1994) for the authority that section 61.13(7) does not create an independent cause of action for custody of a child by its grandparents. We do not have to determine the issue of whether an independent cause of action is created by that…
  • Anne Marie Russo and Peter Russo v. Burgos, 675 So. 2d 216 (Fla. 4th DCA 1996)
    …y arrangements are in the best interest of the child. The father argues that the grandparents do not have standing to proceed under chapter 61, and are relegated to bringing a chapter 39 dependency proceeding, based on In re the Interest of J.M.Z., 635 So. 2d 134 (Fla. 1st DCA 1994). In J.M.Z. the child had been living with the grandparents and at times the parents were also living there. After the parents went out of state for employment and left the child with the grandmother, the grandmother commenced an…

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