MARIA ANDERSON AND STANLEY ANDERSON, APPELLANTS,
v.
HERIBERTO GARCIA, APPELLEE
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Grandparents sought to intervene in a custody action initiated by their former son-in-law after their daughter's death. The court reversed the denial of their motion to intervene, holding that the trial court retained continuing jurisdiction over the child despite the mother's death, and remanded for a hearing to determine whether the grandparents satisfied statutory standing requirements.
The court held that the trial court retains continuing jurisdiction over the child's welfare despite the death of the custodial parent and the potential abatement of the dissolution proceeding. The existence of an ongoing chapter 61 action provided a basis for the grandparents' motion to intervene under section 61.13(7). However, on remand, the grandparents must still demonstrate they meet the statutory requirements for standing.
[1] A trial court retains continuing jurisdiction over a child's welfare in a dissolution of marriage proceeding, even after the death of a parent awarded custody, to address…
[2] A grandparent's motion to intervene in an ongoing dissolution of marriage proceeding to seek custody of a grandchild is permissible under section 61.13(7), Florida Statut…
Previewing 2 of 5 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 complaint itself, when children are involved, invokes the jurisdiction of the court as to two separate and distinct matters; it invokes the jurisdiction of the court on the question of divorce, which jurisdiction is completely and finally exercised when a decree on such question is entered, and it also invokes the continuing jurisdiction of the court as to the welfare of the children, which jurisdiction is not completely exercised until the children reach their majority”
Establishes the principle that courts retain continuing jurisdiction over child welfare matters even when the divorce portion of a dissolution proceeding terminates
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Join FLexlaw to unlock all legal intelligenceIn 1992, the Appellee and Appellants' daughter Gina were divorced, with primary physical custody awarded to the mother. In January 1994, the Appellee …
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STONE, Judge.
We reverse an order denying the grandparent-Appellants’ motion to intervene, filed under section 61.13(7), Florida Statutes (1993), and remand for a hearing to determine Appellants’ standing to pursue custody of their minor grandchild.
In 1992, Appellee and Appellants’ daughter, Gina, were divorced. Pursuant to the divorce decree, primary physical residence of their child was awarded to the mother. In January 1994, Appellee filed a petition with the lower court to remove Gina as the child’s primary custodial parent. However, before the petition could be evaluated, Gina was murdered. Appellants then moved to intervene in the custody action pursuant to section 61.13(7), which grants standing to grandparents “[i]n any case where the child is actually residing with the grandparents in a stable relationship_” Relying on our decision in Schilling v. Wood, 532 So. 2d 12 (Fla. 4th DCA 1988), Appellants’ motion to intervene was denied, resulting in Appellee obtaining permanent custody of the child.
In Schilling, we stated that “[grandparents lack standing to initiate a custody action against a child s parents who legally have not given up custody of the child where such custody is sought in the absence of a Chapter 61 dissolution of marriage proceeding or a Chapter 39 dependency action.” Id. at 14. See also In the Interest of J.M.Z., 635 So. 2d 134 (Fla. 1st DCA 1994) (chapter 61 does not afford grandparents the right to commence an independent cause of action). Here, however, the grandparents have not initiated an independent proceeding. Gina’s death does not terminate the chapter 61 dissolution proceeding to the extent of the court’s jurisdiction over the child.
The supreme court, in Cone v. Cone, 62 So. 2d 907 (Fla.1953), while acknowledging the general principle that divorce proceedings abate upon the death of either party, stated that:
the complaint itself, when children are involved, invokes the jurisdiction of the court as to two separate and distinct matters; it invokes the jurisdiction of the court on the question of divorce, which jurisdiction is completely and finally exercised when a decree on such question is entered, and it also invokes the continuing jurisdiction of the court as to the welfare of the children, which jurisdiction is not completely exercised until the children reach their majority-
Id. at 909. The court further held that “the jurisdiction of the court invoked and continuing in the original cause is not affected by the death of the party in whose custody the children were placed by the former decree.” Id. See also S.G. v. G.G., 666 So. 2d 203 (Fla. 2d DCA 1995) (trial court in dissolution action retains continuing jurisdiction to enter orders affecting the children’s custody and best interests during their continuing disability).
Applying Cone to the instant case, although Gina’s death may have terminated the court’s jurisdiction with regards to the chapter 61 dissolution action, the court nonetheless retained continuing jurisdiction over their child. As such, the existence of an ongoing chapter 61 action provided a basis for Appellants’ motion to intervene under section 61.13(7).
We note that section 61.13(7) does not provide per se standing to all grandparents seeking to affect their grandchildren’s custody arrangements. On remand, Appellants still have the burden of demonstrating that they meet the requirements of section 61.13(7) before pursuing their custody claims.
GLICKSTEIN and GROSS, JJ., concur.
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Citator
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Anne Marie Russo and Peter Russo v. Burgos, 675 So. 2d 216 (Fla. 4th DCA 1996)…custody of the child in the parent’s dissolution action, and thus had continuing jurisdiction to enter orders in the child’s best interest, there was a sufficient basis for the grandparent to seek custody in that court. See also Anderson v. Garcia, 673 So. 2d 111 (Fla. 4th DCA 1996). In view of the father’s petition in this case, the grandparents have standing to seek custody under section 61.13(7), and we therefore reverse and remand for further proceedings. PARIENTE and STEVENSON, JJ., concur. . A chapt…
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Babb v. Begines, 701 So. 2d 616 (Fla. 4th DCA 1997)…ustody of a child only in a previously filed Chapter 61 action, and that spouses must initiate such actions since they are tied [*618] to the marital relationship. See In Interest of J.M.Z., 635 So. 2d 134 (Fla. 1st DCA 1994). In Anderson v. Garcia, 673 So. 2d 111 (Fla. 4th DCA 1996), we determined that, although a wife’s death terminated the trial court’s jurisdiction in a dissolution action, the court retained jurisdiction over the child. Id. at 112. As such, an ongoing Chapter 61 action gave the grandparen…
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Simons v. Haddock, 703 So. 2d 540 (Fla. 4th DCA 1997)…61.13(7), Florida Statutes (Supp.1996). The trial court granted respondents’ petition to intervene without conducting an evi-dentiary hearing to first determine their standing to seek custody as provided by section 61.13(7). In Anderson v. Garcia, 673 So. 2d 111 (Fla. 4th DCA 1996), we said: [S]eetion 61.13(7) does not provide per se standing to all grandparents seeking to affect their grandchildren’s custody arrangements. On remand, Appellants still have the burden of demonstrating that they meet the req…
Authorities Cited
- Cone v. Cone, 62 So. 2d 907 (Fla. 1953)
- S.G. v. G.G., 666 So. 2d 203 (Fla. 2d DCA 1995)
- Schilling v. Wood, 532 So. 2d 12 (Fla. 4th DCA 1988)
- In the Interest of J.M.Z., 635 So. 2d 134 (Fla. 1st DCA 1994)