Court: District Court of Appeal of Florida; April 11, 2012; Florida; State Appellate Court
A father, identified as J.R.B., challenges a trial court's order granting temporary custody of his two daughters to their grandparents. The father asserts that the grandparents lacked standing to petition for custody under Florida Statutes chapter 751 because the children were not residing with them but were only visiting during a court-ordered summer visitation. The court agrees and reverses the custody order.
The father was awarded full custody following his divorce, while the grandparents had visitation rights established by a Minnesota court in 2005. After the father relocated to Florida in 2011, the grandparents registered the Minnesota visitation order in Florida. They later filed a motion for contempt, claiming the father had wrongfully withheld visitation, leading to the court granting them make-up visitation.
On August 16, 2011, the grandparents filed an emergency petition for temporary custody, citing section 751.03, which allows extended family members to seek custody. A hearing was held on August 19, during which the father moved to dismiss the grandparents' petition for lack of standing, arguing that the children were not living with them. The trial court denied the motion and subsequently granted temporary custody, citing concerns about the father's alcohol use and other allegations of abuse and neglect.
On appeal, the father contends that the trial court lacked jurisdiction, as the children were merely visiting the grandparents at the time of the petition, not living with them. The appellate court finds that chapter 751 requires extended family members to be caring full-time for the child and that the grandparents did not meet this criterion, confirming that the children were not "presently living" with them during the petition's filing.
The trial court previously ordered "make up visitation" for the grandparents due to the father's wrongful withholding of visitation. As a result, the grandparents lacked standing to file a chapter 751 petition for temporary custody. Consequently, the order granting temporary custody to the grandparents is reversed, and the case is remanded for the trial court to grant the father's motion to dismiss the grandparents’ petition for lack of standing. The father's other arguments are rendered moot by this reversal. The decision does not prevent the grandparents or the Department of Children and Families from initiating a dependency action under chapter 39, Florida Statutes, nor does it restrict the parents from consenting to the grandparents’ custody under section 751.02(1)(a). The father's petition for a writ of habeas corpus is reclassified as an appeal of a non-final order related to child custody, in accordance with Florida Rules of Appellate Procedure. Judges Gerber and Levine concur with the decision.
