GEORGE S. ENGLE, JR., APPELLANT,
v.
ANN ENGLE, APPELLEE
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Paternal grandparents sought relief from a court order requiring them to financially support their grandchildren while formal custody remained with them but actual care and control had been transferred to the maternal grandparents. The court reversed, holding that parents—not grandparents—bear the legal duty to support minor children, and that grandparents cannot be compelled to support grandchildren merely because they hold formal custody.
The court reversed, holding that parents—not grandparents—bear the primary legal duty to support minor children regardless of custody arrangements, and that grandparents cannot be required to support grandchildren merely because they hold formal custody when actual care and control rests with others. The grandparents' status in loco parentis was not established where the grandchildren reside in another's home.
[1] Parents, not grandparents, have the legal duty to support their minor children, and this duty is not extinguished by a court's award of custody to a third party.
[2] A court cannot equitably require non-parents to continue supporting grandchildren after actual custody and control have been transferred to other parties.
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“it is the duty of the father, not the grandparents, to support the minor children and this duty is not affected by the fact that the custody of the children has been taken from the parent by a decree of a court of competent jurisdiction”
Establishes the fundamental principle that parental support obligations are not displaced by custody decrees affecting grandparents.
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Join FLexlaw to unlock all legal intelligenceIn 1971, George Engle Jr. petitioned for divorce and sought to transfer custody of his three minor children from his wife to his parents (the appellan…
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PER CURIAM.
Appellants, Mr. and Mrs. George S. En-gle, Sr., the paternal grandparents, seek review of an order denying their motion to be relieved from a judgment and order designating them as formal custodians of their three minor grandchildren, and directing them to contribute financially to their grandchildren’s support and maintenance.
In April 1971 George Engle, Jr. petitioned for divorce and in September moved that the custody of the three minor children be changed from his wife Annie to his parents.
The trial court, finding that neither George, Jr. nor Annie was a fit and proper person to have care of their three children, awarded custody of the children to appellants. In November, with the apparent approval of the court, the three children moved into the home of the maternal grandparents, Mr. and Mrs. Charles Venice, with the consent of appellants.
On February 2, 1972 the court dissolved the marriage between George and Annie and reserved jurisdiction to determine the question of child custody.
On July 5, 1972 the court entered an order directing that the minor children remain in the actual care and custody of Mr. and Mrs. Venice with formal custody in the appellants, and instructing the appellants to continue to contribute financially to the support, maintenance and welfare of the children to the same extent as that contributed by them over the period in which temporary custody was with them. Upon the petition of Mr. and Mrs. Venice for enforcement of court order (of July 5, 1972), appellants were ordered to pay the children’s school tuition, medical and dental bills, and to reimburse the Venices for the cost of the children’s clothes.
On October 10, 1974 appellants filed a motion to be relieved from judgment and order pursuant to RCP 1.450 on the grounds that the July 5, 1972 order was void in that the law compels parents to contribute to the support of their minor children. The motion was denied and this appeal ensued.
We reverse.
First, it is the duty of the father, not the grandparents, to support the minor children and this duty is not affected by the fact that the custody of the children has been taken from the parent by a decree of a court of competent jurisdiction. See Schiff v. Schiff, Fla.App.1960, 123 So. 2d 295 and 24 Fla.Jur. Parent and Child § 11 (1959).
Second, upon the transfer of actual custody and control to the Venices, it was inequitable to require the appellants to continue to support the grandchildren. Further, there is no statute or common law requiring appellants to make support payments on behalf of their grandchildren.
Third and last, the grandchildren residing in the home of the maternal grandparents, it cannot be said that appellants stand to the children in loco parentis and, thus, be bound for their maintenance, care and education. Cf. Weigl v. Ombres, Fla.App.1958, 106 So. 2d 614; Fussell v. Douberly, Fla.App.1968, 206 So. 2d 231.
The order of denial appealed is reversed and this cause is remanded to the trial court with directions to enter a new order granting appellants’ motion to be relieved from judgment and order. Reversed.
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Kendrick v. Everheart, 390 So. 2d 53 (Fla. 1980)…8, 31 L.Ed.2d 551 (1972); Behn v. Timmons, 345 So. 2d 388 (Fla. 1st DCA 1977). See also Bourn v. Hinsey, 134 Fla. 404, 416, 183 So. 614, 619 (1938) (Buford, J., concurring specially). . Cf. Brown v. Bray, 300 So. 2d 668 (Fla. 1974); Engle v. Engle, 323 So. 2d 658 (Fla. 3d DCA 1975); Brannan v. Brannan, 284 So. 2d 701 (Fla. 1st DCA 1973). Defendant Annie Everheart has not contested appellant’s claim for contribution to child support and a default was entered against her. Accordingly, if on remand of this case…
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The Dep't OF Health & Rehabilitative Servs. v. Thomas, 477 So. 2d 1053 (Fla. 5th DCA 1985)…these two children had been legally adopted by the wife’s new husband and therefore became his responsibility. . The obligation to support Michael remained with the father even though a non-parent had assumed custody of Michael. See Engle v. Engle, 323 So. 2d 658 (Fla.3d DCA 1975). See abo Cronebaugh v. Van Dyke, 415 So. 2d 738 (Fla. 5th DCA 1982), rev. denied, 426 So. 2d 25 (Fla.1983) (child’s right to support must be enforced by a legal representative and recipient of child support receives the monies not…
Authorities Cited
- Schiff v. Schiff, 123 So. 2d 295 (Fla. 3d DCA 1960)
- Fussell v. Douberly, 206 So. 2d 231 (Fla. 2d DCA 1968)
- Weigl v. Severn Richard Ombres, M.D., 106 So. 2d 614 (Fla. 2d DCA 1958)