ANNE MARIE RUSSO AND PETER RUSSO, APPELLANTS,
v.
HUMBERTO TRIAS BURGOS, APPELLEE
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The Fourth District Court of Appeal reversed dismissal of a grandparent counterpetition for custody, holding that grandparents have standing under Florida Statute 61.13(7) to seek custody when a child is residing with them in a stable relationship and a custody proceeding is already pending. The court clarified that section 61.13(7), enacted in 1993, provides grandparents with standing to intervene in existing chapter 61 proceedings even though prior case law denied grandparents independent custody rights.
Grandparents have standing under section 61.13(7) to seek custody in a chapter 61 proceeding when the child is actually residing with them in a stable relationship and a custody proceeding is already pending. The statute grants grandparents standing to intervene in an existing chapter 61 proceeding for purposes of determining custody arrangements in the child's best interest.
[1] A grandparent with whom a child has resided in a stable relationship may have the same standing as a parent to seek custody arrangements in the child's best interest.
[2] A grandparent's standing to seek custody under section 61.13(7), Florida Statutes, is supported by the filing of a chapter 61 custody proceeding by another party.
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“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.”
The statutory basis for grandparent standing under section 61.13(7), Florida Statutes (1993).
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Join FLexlaw to unlock all legal intelligenceAnne Marie and Peter Russo are the maternal grandparents of a two-year-old child who has lived with them since birth. The child's mother is deceased. …
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KLEIN, Judge.
Appellants are the maternal grandparents of a two-year-old child who has been living with them since her birth. The child’s mother is deceased. Appellee, who was not married to the mother, alleges he is the father. He filed a petition for custody, and the grandparents counterpetitioned. They bring this appeal from an order dismissing their counterpetition with prejudice, and we reverse.
The grandparents’ counterpetition for custody is based on section 61.13(7), Florida Statutes (1993), which 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.
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 action for custody pursuant to both chapter 39 and section 61.13(7). The court found that the grandmother did not prove her claim under chapter 39 by clear and convincing evidence, but did award her custody under section 61.13(7) because it was in the child’s best interest.1
The first district reversed, concluding that section 61.13(7) does not authorize a grandparent to bring an independent action for custody, but “merely grants standing to the grandparents t<D intervene in an existing chapter 61 proceeding for the purpose of determining custody of the minor child.” 635 So. 2d at 135. In the present case the father had already instituted a chapter 61 proceeding for determining custody. Therefore J.M.Z. supports the grandparents’ claim that they do have standing to bring their counter-petition.
The father also cites Schilling v. Wood, 532 So. 2d 12 (Fla. 4th DCA 1988), in which we held that grandparents lack standing to initiate a custody action against the child’s parents; however, Schilling was decided before section 61.13(7) was enacted in 1993.
The second district has authorized intervention by a grandparent with whom the child has been residing even where there was no pending proceeding. In S.G. v. G.G., 666 So. 2d 203 (Fla. 2d DCA 1995), the court held that because the circuit court had previously determined 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 chapter 39 proceeding requires proof by clear and convincing evidence that a parent is "unfit,” but a proceeding under chapter 61 only requires proof by a preponderance of the evidence that a custody decision be in the best interest of the child.
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Richardson v. Richardson, 766 So. 2d 1036 (Fla. 2000)…not properly preserved the issue for appeal. Nevertheless, we disagree with appellant’s contention that this Court may apply such tools of statutory construction to 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 "b…
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Kazmierazak v. Query, 736 So. 2d 106 (Fla. 4th DCA 1999)…t seeking relief pursuant to any statute. Under Florida law, to invoke the jurisdiction of the court, a non-parent may petition for custody or visitation of another’s child under the statutory authority of Chapter 39, 61, or 63. See Russo v. Burgos, 675 So. 2d 216, 217 (Fla. 4th DCA 1996); In re C.M. and F.M., 601 So. 2d 1236 (Fla. 4th DCA 1992); MMMA v. Jonely, 677 So. 2d 343, 346 (Fla. 5th DCA 1996). Chapter 39 allows a non-parent to file a petition for dependency. See § 39.404(1). Chapter 61 allows a grand…
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Iolanda Carpenter v. Berge, 686 So. 2d 759 (Fla. 5th DCA 1997)…of custody and support, invoked the provisions of Chapter 61, Florida Statutes. Chapter 61 has recognized since May 15, 1993, that grandparental custody may be awarded in certain situations. See § 61.13(7), Fla.Stat.1 See generally Russo v. Burgos, 675 So. 2d 216 (Fla. 4th DCA 1996). Indeed, section 61.13(7) is significant because when it is properly invoked, it affords the grandparents the same standing as a natural parent for evaluating what custody arrangements are in the best interest of the child. S.G.…
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
- 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)
- Anderson v. Heriberto Garcia, 673 So. 2d 111 (Fla. 4th DCA 1996)