S.G., NATURAL MOTHER, APPELLANT,
v.
G.G., PATERNAL GRANDMOTHER, AND M.L.H., PATERNAL AUNT, APPELLEES
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A paternal grandparent with whom a child has resided in a stable relationship has standing under Fla. Stat. § 61.13(7) to seek custody, and the 'best interest of the child' standard is applicable in such cases.
[1] A grandparent with whom a child has resided in a stable relationship has standing to petition for custody under section 61.13(7), Florida Statutes.
[2] A court with continuing jurisdiction over child custody matters may consider a grandparent's petition for custody when the child has resided with the grandparent in a sta…
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Join FLexlaw to unlock all legal intelligenceFollowing the father's death, custody of his son Michael was contested between the mother and the paternal grandmother. The trial court awarded custod…
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CAMPBELL, Acting Chief Judge.
Appellant, S.G. (mother), challenges the trial court’s order that granted custody of her oldest child, Michael (DOB: 09/30/85), to appellee, G.G. (Michael’s paternal grandmother). As we will explain, we affirm the trial court’s order granting custody of Michael to appellee.
In ease number 94-03377, we are simultaneously affirming an order of the trial court in a dependency proceeding involving Michael’s younger brother, Mark (DOB: 06/08/89). In that dependency proceeding, Mark, who had previously been adjudicated dependent, was returned to the custody of appellant under continuing protective supervision. Appellee and M.L.H., the children’s paternal aunt, were granted visitation rights with Mark.
Appellant and the children’s father, T.G., had been divorced in the circuit court for the Tenth Judicial Circuit for Hardee County, Florida, in 1990. In that proceeding, appellant was awarded primary residential custody of Mark, and the father was awarded primary residential custody of Michael. Michael and his father resided with appellee in her home. In 1991, a shelter petition was filed regarding Mark. He was subsequently adjudicated dependent and placed in the temporary custody of his father under protective services supervision. Approximately eight months later, on December 16, 1991, the father was killed in an automobile accident. As a consequence, upon oral motion by the Department of Health and Rehabilitative Services (HRS), the trial court transferred Mark’s temporary custody to appellee, with whom the children and their father had been living. At that same hearing, HRS asked that Michael be placed in shelter with appel-lee so that appellant would not be able to gain custody of him due to the father’s death. Appellant denied the allegations in the shelter petition alleging threatened harm to Michael, but no further action was taken.
On May 27, 1993, over the objections of appellee, temporary custody of Mark was transferred to appellant based upon her completion of the protective services plan entered into with HRS. On that same date, HRS filed a notice of voluntary dismissal of all pleadings involving Michael. On June 11, 1993, appellee filed a civil action in the circuit court of Hardee County (the same court that awarded custody of the children in their parents’ dissolution action) seeking custody of the children. On August 26, 1994, the trial court entered the order which is the subject of this appeal awarding custody of Michael, but not Mark, to appellee.
While appellant raises several issues in this appeal, we will discuss only two. Appellant first argues that section 61.13(7), Florida Statutes (1993) does not create in appellee, the paternal grandparent of Michael, a cause of action whereby appellee could seek custody of Michael. We disagree. Section 61.13(7) provides as follows:
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. 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 statute. The custody of both children had been previously determined in their parents’ dissolution action in the circuit court of Hardee County. That court has continuing jurisdiction to enter orders affecting the children’s custody and best interests during their continuing disability. See Cone v. Cone, 62 So. 2d 907 (Fla.1953).
Appellee invoked that court’s jurisdiction when she filed an action seeking custody of the children. Michael had, in fact, been residing with appellee in a stable relationship for the greater part of his life. We find that under these circumstances, appellee had standing under section 61.13(7) to petition the circuit court of Hardee County for custody of Michael.
The second issue raised by appellant is linked to the previously-discussed issue and also involves an interpretation of section 61.13(7). Appellant argues that the trial court erred in awarding custody of Michael to appellee on a “best interest of the child” standard. Appellant relies on In re Guardianship of D.AMcW., 460 So. 2d 368 (Fla. 1984), Paul v. Lusco, 530 So. 2d 362 (Fla. 2d DCA 1988), rev. denied, 539 So. 2d 475 (Fla. 1989) and In re Guardianship of Wilkes, 501 So. 2d 704 (Fla. 2d DCA 1987), for the principle that the best interest of the child standard is not applicable to a custody dispute between a parent and a non-parent because a parent may not be deprived of custody absent a finding of unfitness or long-term detriment to the child. While the principle relied upon by appellant is correct for the eases cited, appellant’s argument overlooks the clear provisions of section 61.13(7) that are applicable to the circumstances of this case. That section provides that appellee, with whom Michael had resided in a stable relationship for the better part of his life, may be recognized as having the same standing as appellant “for evaluating what custody arrangements are in the best interest of the child.” (Emphasis supplied.)
The evidence supports the trial court’s determination that it is in the best interests of Michael to be placed in the custody of appel-lee. We, therefore, affirm the order of the trial court.
PARKER and QUINCE, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Richardson v. Richardson, 766 So. 2d 1036 (Fla. 2000)…save section 61.13(7). Neither option applies in this case. . Cf. Russo v. Burgos, 675 So. 2d 216 (Fla. 4th DCA 1996). . In interpreting section 61.13(7) the Second District, however, has reached the opposite conclusion. The court in S.G. v. G.G., 666 So. 2d 203, 205 (Fla. 2d DCA 1995), holds that section 61.13(7) permits courts to apply the "best interest of the child” standard in a custody dispute between a parent and a grandparent without first determining parental unfitness or harm to the child. That co…
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Lonon v. Ferrell, 739 So. 2d 650 (Fla. 2d DCA 1999)…asoning to this case, there is no pending dissolution proceeding. Moreover, the circuit court does not have continuing jurisdiction over child custody issues because the Lonons’ son consented to the child’s adoption by Mr. Ferrell. Cf. S.G. v. G.G., 666 So. 2d 203, 204 (Fla. 2d DCA 1995) (noting in custody action by grandparents that the court had continuing jurisdiction to enter orders affecting the children’s custody). Thus, the Lonons’ asserted rights to visitation arise solely from the unconstitutional pr…1 / 2
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Brunetti v. Saul, 724 So. 2d 142 (Fla. 4th DCA 1998)…ing paternity proceeding in the present case, the grandparents remind us that trial courts in dissolution proceedings retain continuing jurisdiction to enter orders regarding children’s custody and best interests while they are minors. S.G. v. G.G., 666 So. 2d 203 (Fla. 2d DCA 1995) (citing Cone v. Cone, 62 So. 2d 907 (Fla.1953)). This case is still distinguishable from Spence, though, because section 61.13, on which Spence is grounded, is only applicable if there is “a proceeding.” § 61.13(l)(a). In the pres…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- In re Guardianship OF D.A.McW. v. McWHITE, 460 So. 2d 368 (Fla. 1984)
- Cone v. Cone, 62 So. 2d 907 (Fla. 1953)
- In re the Guardianship OF Natalie Marie Wilkes v. Mary and Marshall Crum, 501 So. 2d 704 (Fla. 2d DCA 1987)
- Paul v. Lusco, 530 So. 2d 362 (Fla. 2d DCA 1988)
- In the Interest of J.M.Z., 635 So. 2d 134 (Fla. 1st DCA 1994)