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Custody and Rights of Grandparents

When it comes time for the court to determine and establish a time sharing and parenting plan between the biological parents of a minor child, the court applies the “best interests of the child” test in making its consideration.

There are numerous factors that the court will look at in making its determination as to the best interests of the child.  All of these various factors are set forth in Florida Statute 61.13.  You can review the criteria under the statute and examine the nonexclusive list of things the judge will be looking at when you go to court.

What happens in a case, however, when only one biological parent is competing with a relative, for example, a grandparent, for custody and time sharing with a minor child?  How will the court look at a situation like this? Will the judge apply the same standards regarding the best interests of the child in structuring a time sharing or custody arrangement of the child?

There is a different standard that the Court will apply in a case like this.  The Supreme Court of Florida had an opportunity to review a disputed case of custody between a natural parent and a grandparent.  In the case of Richardson v. Richardson,  the Florida Supreme Court stated that the trial judge cannot rely solely on the best interests of the child standard, which is utilized when there are two biological parents or natural parents are litigating between themselves in a custody and time sharing dispute.

In a situation like this, the court engages in a two-step process.  First the court must first decide that whether or not it would be a detriment to the child if the child would remain with the natural parent.  If it would be a detriment, then the court would consider the “best interests of the child”.  To employ any other type of test, would put the grandparents on the same level as a natural parents, which is not authorized under Florida law.

Who has the burden of proof in cases like this?  The burden of proof squarely falls on the shoulders of the grandparent or other part person who is seeking to show that the natural parent is unfit, and that placing the child With that parent in would be a detriment to the welfare of the child.

This standard to be applied under the law, between competing interests of a natural parent and a grandparent was  set forth in the case of LaFleur v. Webster.  The LaFleur case also discusses who has the burden of proof of unfitness of a natural parent.  A natural parent does not have to prove their fitness.  A grandparent must prove the natural parent’s unfitness.

The same rules would apply in any case when a third party, whether a grandparent or not, is seeking custody of a child over the objections of a natural parent.  Their rights simply do not rise to the same level that a natural parent enjoys with their offspring.  It takes more than applying the “best interests of a child” when it comes to situations like this.

Alan R. Burton is a family law attorney with over 35 years of experience, practicing in Boca Raton, Florida. Seek his advice by calling him today at 954-295-9222 on all issues regarding minor children, or any other issue related to family law matters.


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