In some situations it makes sense for an extended family member to have temporary custody of a child. These situations are usually extremely sad, as the parents may be struggling with mental health issues, substance abuse issues, or they may be facing incarceration. The only silver lining is that a concerned family member is willing to step in and assist by taking care of the legal parents’ minor children until the parents are ready to resume their role as a parent. Often this will be the minor child’s grandparents or an aunt or uncle.
A court order providing temporary custody for an extended family member prevents the children from becoming a ward of the state, and allows an extended family member with custody to do things like secure copies of medical records, enroll a child in school, and otherwise do things necessary for the care of the child.
Temporary custody of minor children by extended family is controlled by Chapter 751 of the Florida Statutes.
The purpose of this article is to go over the process of obtaining temporary custody as an extended family member. As a family law attorney located in Venice, Florida, I assist families in Venice, Sarasota, and the surrounding area with these kinds of issues. As usual this article is not designed to replace legal advice, and is instead being offered for educational purposes.
Who is an “Extended Family Member”?
First, we should identify who an “extended family member” is so that we can determine who has standing to file for temporary custody.
Florida law defines an extended family member as a relative of a minor child within the third degree by blood or marriage to the parent, or as a stepparent of a minor child if the stepparent is currently married to the parent and is not a party in a pending civil or criminal proceeding involving one or both of the child’s parents as an adverse party.
The Temporary Custody by Extended Family Process
Like most legal proceedings, there is an easy and a hard way to get the result you want.
The easiest way is if the other side agrees, and if you obtain a signed, notarized consent from the child’s legal parents. The consents will be filed along with a basic petition requesting temporary custody. With signed consent documents in place, the Judge’s decision to grant the temporary custody petition will be an easy one. Florida Courts generally recognize agreements, and if the legal parents have agreed to an extended family member having temporary custody, then the Court will honor that wish.
If the legal parents do not agree, then it becomes much harder to obtain temporary custody as an extended family member. The extended family member must file a petition requesting temporary custody, and then they must serve the petition and a summons on the legal parents with a process server. The legal parents will then have an opportunity to object to the petition. If they object, then you must have a trial, and the Court will only grant the temporary custody upon finding that the child’s parents are unfit to provide for the care and control of the child.
The legal burden is the “clear and convincing evidence” burden, which means that the evidence presented must be highly and substantially more probable to be true than not. It’s a greater burden than a simple preponderance of the evidence standard, so the petitioning family member must be prepared to provide substantial evidence to back their assertions.
Because there is no such thing as “grandparents rights” in the State of Florida, a Court will only grant custody to an extended family member in situations where the parties agree or when it is clearly appropriate.
At the final hearing the Judge will either grant or deny the request. If the temporary custody is granted, then the Judge will sign a court order. The order will provide the petitioner with all the rights and responsibilities of a legal parent, and will authorize the petitioner to make all reasonable and necessary decisions for the child. This includes things like obtaining reasonable and necessary medical and dental care, obtaining copies of the child’s records, and enrolling the child in school.
Temporary Custody is Designed to be Temporary
By it’s very nature, a Petition for Temporary Custody is designed to offer temporary relief. It’s designed for shorter term situations, and it’s not a substitute for a formal adoption proceeding. An Order for Temporary Custody can be modified upon a motion by one of the parties, or by an agreement between the parties.
Temporary Custody by Extended Family – Final Thoughts
I hope this article has provided a decent overview of how temporary custody by extended family member petitions work. These are sad situations, but a temporary custody order can offer fast relief for families in crisis.
