Out of all the different types of cases in Family Law, Temporary Custody by Extended Family Member cases have come up more than I would have ever expected.
Like the name implies, petitions for Temporary Custody by Extended Family Member are where an extended family member – not a parent – petitions the court for temporary custody of a child.
This can be done with or without the consent of the parent.
The two most common issues associated with these filings are:
(1) who counts as an “extended family member” in the eyes of the court and
(2) what does the court look at to determine whether it should grant an extended family member temporary custody of a child.
First, eligible extended relatives include grandparents, siblings, aunts, uncles, first cousins, and step-parents – otherwise defined by Chapter 751 of the Florida Statutes as those within the third degree by marriage or blood.
It should be noted, Chapter 39 of the Florida Statutes also allows for what is known as “fictive kin” to petition for Temporary Custody where an individual, though not related by blood, marriage, or adoption can petition the court upon showing they have a close family-like relationship with the child.
Second, the standard the court looks at to determine if Temporary Custody should be granted is what is in the best interest of the child(ren).
Florida Statute § 61.401 holds that in “an action for dissolution of marriage or the creation, approval, or modification of a parenting plan, if the court finds it is in the best interest of the child, the court may appoint a guardian ad litem (GAL) to act as next friend of the child, investigator, or evaluator.”
But what does that mean? Guardian ad Litem literally translates as guardian of the suit. For practical purposes, a GAL is a professional (typically an attorney) appointed by the court to investigate, evaluate, and ultimately recommend to the court what kind of timesharing/parenting plan is in the best interest of the child(ren).
It is important to note that the GAL’s role is not to advocate on behalf of the child(ren)’s wishes, but to recommend what timesharing/parenting plan the GAL believes to ultimately be in the child(ren)’s best interest.
Further, a GAL is treated as a party to the case, not just a witness. This means GALs are expected to attend all court hearings, depositions, and have authority beyond that of the typical witness.
In nearly all cases, GALs will interview both parents, the child(ren), witnesses, siblings, teachers, and relevant medical professionals (i.e. therapists, psychologists, or medical doctors) as part of their investigation.
Because GALs are parties to the case, they are also free (through counsel) to petition the court for an order allowing them to inspect and copy any records or documents which relate to the child(ren) or parents.
GALs can also (again through counsel) request the court enter an order requesting expert examinations of the child(ren) and parents. Common examinations sought include psychological or substance abuse evaluations.
In Florida, every individual is considered an adult in the eyes of the law when they reach the age of majority (18), regardless of disability or individual circumstances.
However, in instances where a person is born or has a developmental disability that limits their cognitive functioning, Florida Statute 393.12 permits courts to appoint what are called Guardian Advocates.
Guardian Advocates are typically parents, family members, and/or close associates of an individual with a developmental disability (“Wards”) who are empowered to make decisions on the Ward’s behalf.
Under Florida Statute 393.063(9), developmental disabilities are defined as “a disorder or syndrome that is attributable to intellectual disability, cerebral palsy, autism, spina bifida, or Prader-Willi syndrome” that manifests before the age of 18.
Guardian Advocates can assume the same powers attributed to traditional guardianships, including the power to manage the Ward’s finances, living situation, education, and healthcare.
If you believe you know someone in your life who could benefit from the creation of a Guardian Advocacy, please reach out so we can discuss your options.
Anytime a parent/guardian files for a temporary change in a parenting plan, parental responsibility, or timesharing, certain procedures must be followed or the request may be summarily dismissed/denied. For example, anytime a parent moves for a temporary change in timesharing, in addition to the motion, that parent must file simultaneously an updated proposed parenting plan and financial affidavit. Any temporary motion that does not include those documents may be dismissed immediately.
Further, parties are required to first attend mediation before the court will even hear the motion, which can take weeks to schedule. Due to such complications, when filing or considering filing a motion for temporary relief, it is essential to consult with a knowledgeable Florida attorney who can advise you on the appropriate steps to undertake to ensure your motion is given the appropriate consideration by the court it deserves.
Unfortunately, in Florida, the rules governing emergency motions tend to be quite complicated. The filings (i.e. motions/exhibits) must meet very specific requirements and litigants must follow very specific procedures when pursuing emergency relief. Most importantly, Smith v. Crider, 932 So.2d 393 (Fla. 2d DCA 2006) explicitly defines family law emergencies as situations “where a child is threatened with physical harm or about to be improperly removed from the state.” Short of those two situations emergency motions in Florida family law courts will be denied. If you believe that your situation constitutes an emergency, please do not hesitate to contact a duly licensed Florida attorney as they can assist you in ensuring all the proper steps and procedures are followed.
Of note, for additional information on emergency motions I recommend if you live in Pinellas or Pasco counties (6th Circuit) checking Judge Labruzzo’s procedures and preferences page and if you live in Hillsborough County (13th Circuit) checking Judge Palermo’s procedures and preferences page as they provide great summaries.
Breach of contract. Torts (civil wrongs like negligence, fraud, libel, trespass ). Injunctions. Constitutional challenges. These are all examples of cases that make up civil litigation I have handled in the past. Yet what makes civil litigation in Florida unique is that state governments by and large have tremendous discretion in determining what remedies are available to claimants and how cumbersome the litigation process is for resolving such disputes.
Adding to the complexity is that much of the time certain disputes actually involve a variety of claims. Thus, what appears to be a simple breach of contract claim on the surface ends up also including a claim for tortious interference of another business’s contractual relationship (that happened in one of my cases). Why does this matter? Because the type of remedies and monetary damages you can pursue are heavily tied to the type of claim you bring before the court.
That is why if you believe you may have a claim for breach of contract, tort, injunction, or Constitutional challenge it is essential to consult with an appropriate Florida barred attorney.
Whether you are on a Ramen Noodle budget or a Martha’s Vineyard budget, we can all agree lawyers are expensive. In fact, the only people who probably don’t feel that way are lawyers who own homes on Martha’s Vineyard.
That said, I strive to create value for my clients. Specifically, everything I try to do is with the thought of using the resources I am given to solve problems without my clients incurring any more expenses than are necessary. If you happen to retain me, don’t be surprised if in one of our conversations I say, “Let’s not turn a $50 issue into a $5,000 problem.”
As crazy as it sounds, sometimes it’s easier to speak with someone outside the hours of 9:00 a.m. to 5:00 p.m. I understand that and am available for consultations and appointments in the evenings and on weekends. I try to be available to my clients 24/7 and respond promptly to all phone calls and emails.
Frankly, I like talking shop. No matter who I talk to (other lawyers, judges, expert witnesses, or prospective clients) I always feel like I learn or discover something new. If you have a family law or other legal issue you wish to discuss, please contact my office and we can set up time to speak.
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