Non-parental child custody and child visitation in Florida by Deborah Dye: FLORIDA STATUTES AND CASES

Under the Federal Constitution parents have the right to the custody and companionship of his or her children, which is termed a "right of privacy", meaning grandparents cannot seek custody of their grandchildren because they do not consider the parents as doing a good job of parenthood.

The State of Florida has furthered the Federal Constitution "right to privacy" under its state constitution that precludes court-ordered nonparental custody unless the petitioning nonparent shows that the child will suffer significant, demonstrable harm if custody is not granted to him or her [see Richardson v. Richardson, 766 So. 2d 1036, 1043 (Fla. 2000); Von Eiff v. Azicri, 720 So. 2d 510, 514 (Fla. 1998); Kazmierazak v. Query, 736 So. 2d 106, 109 (Fla. 4th DCA 1999); see also Art. I, § 23, Fla. Const.].

The Supreme Court considered a grandparent custody statute which gave grandparents the same standing as parents in custody determinations under Chapter 61, if the grandparents had been living in a stable relationship with the child. The Supreme Court held that the statute was constitutionally invalid because it violated natural parents’ constitutional privacy rights by failing to require a showing of demonstrable harm to the child

To justify invasion into a natural parent’s constitutionally protected privacy rights pursuant to Von Eiff, a nonparent-petitioner must make a threshold showing of harm to the child, and then must show that custody would be in the child’s best interests.

The right of a natural parent to enjoy the custody, fellowship, and companionship of his or her child can be abrogated only when the ultimate welfare or best interest of the child requires the termination of parental rights.

Unless the natural parents are found to be unfit or have relinquished their rights, nonparents cannot be given custody of minor children.

Custody should be denied to the natural parent only when such an award will, in fact, be detrimental to the welfare of the child.

The court acknowledged that after Pape and D.A.McW, the best interest of the child was no longer the standard to be applied in awarding custody to non-parent.

The court held that the showing required under D.A.McW., that the natural parent is unfit or that placement with that parent would be detrimental to the welfare of the children, must be supported by clear, convincing, and compelling evidence.

The court held that a stepparent does not have any legal entitlement to seek court-ordered time-sharing with a stepchild, much less to have custody or primary residential responsibility.

A nonparent (aunt) had no standing to petition the court for primary residential responsibility for a child, even though the parents had consented to the child living with the aunt, unless the petition was brought through an F.S. Chapter 39 dependency proceeding.

There is not any authority for granting time-sharing to a child's aunt.

Meeks was cited in Taylor v. Kennedy, 649 So.2d 270 (Fla. 5th DCA 1994), in which the appellate court considered the matter at the jurisdictional level, issuing a writ of prohibition because the trial court had no inherent power to award time-sharing rights to nonparents and no statute applied.

If a nonparent has been awarded custody under F.S. Chapter 751, the parent need only prove fitness to regain custody. To obtain modification of an order granting permanent custody to a nonparent, however, the parent must show a substantial change of circumstances and that the change would promote the child's best interest.