final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Dixie County. Jennifer J.
J. Benda of the Law Office of Knellinger, Jacobson &
Associates, Gainesville, for Appellant.
Michael O'Steen of M. Michael O'Steen, P.A., Cross
City, for Appellee.
biological father appeals an order granting temporary custody
of the minor child to the step-father and denying his
Emergency Verified Motion for Pick-Up Order. He argues the
trial court applied the incorrect legal standard for the
determination of a contested petition for temporary custody
by an extended family member under to section 751.03, Florida
Statutes (2016). Because we agree, the order on appeal is
reversed and the matter is remanded to the trial court for
further action consistent with this opinion.
the tragic and unexpected death of the biological mother, the
step-father filed a Petition for Ex Parte Emergency Custody
by Extended Family Member pursuant to section 751.03. In
response, the father filed an Emergency Verified Motion for
Child Pick-up Order and challenged the temporary custody
request of the step-father. At the time of the temporary
custody proceedings, the minor child was sixteen years of age
and living in Florida with her step-father and younger
brother. The father lived in Germany with his wife and the
children born of that marriage.
of history, the biological parents began the dissolution of
their marriage in 2002 when the minor child was approximately
eighteen months of age. The parents entered into a mediated
settlement agreement in 2002, which named the mother as the
primary residential parent. The dissolution of marriage was
finalized in 2007. Subsequently, the mother married the
father's brother (the minor child's "uncle"
and following the marriage, also her
"step-father"). For the next fourteen years, the
minor child was raised by the mother and step-father and
continuously resided with them in Florida.
father has served in the military, mostly abroad, since the
minor child was four years of age. There were periods of
years where the father and the minor child had no in-person
contact. Visitation between the father and the minor child
over the last fourteen years has been sporadic, at best.
father now desires to exercise full parental responsibility
and relocate the minor child to Germany, where he is
currently stationed. The step-father petitioned for custody
to allow the minor child to remain in Florida and living in
the family home where she was raised. The minor child
unequivocally expresses her desire to remain living with the
step-father and her younger brother. Her plea is that custody
be granted to her step-father so she can remain "at
home" with the step-father and her younger brother,
finish high school with her friends, and be near her older
sister who attends college in Florida.
an in-depth temporary custody hearing at which multiple
witnesses testified, including the teenaged minor child, the
trial court granted temporary custody to the step-father; the
trial court explicitly based this determination on the best
interest of the child standard outlined in section 61.13,
Florida Statutes. Giving great weight to the minor
child's desires to remain in this country with the
step-father and her siblings and to complete her schooling,
the trial court ultimately determined that granting temporary
custody to the step-father was in the minor child's
"best interests." The trial court further reasoned
that it "would be detrimental, cause mental, physical or
emotional harm to uproot [minor] from her home and send her
to the other side of the world when her schooling and her
friends are so much a part of her life and her world and what
she relies on for stability in this difficult time."
step-father is not a natural parent, the trial court's
use of the best interest of the child standard to determine
temporary custody was error. Preference to the natural
parents prevails despite the fact that third persons are
capable and willing to provide better financial and social
benefits to the child. See In re Marriage of Matzen,
600 So.2d 487 (Fla. 1st DCA 1992). This parental preference
rule, which is premised on the widely held view that the
family unit should be preserved, derives from the seminal
case of In re Guardianship of D.A. McW., wherein the
court stated that "[w]hen the custody dispute is between
a natural parent and a third party . . . the test must
include consideration of the right of a natural parent
'to enjoy the custody, fellowship and companionship of
his offspring . . . This is a rule older than the common law
itself.'" 460 So.2d 368, 370 (Fla. 1984) (quoting
State ex rel. Sparks v. Reeves, 97 So.2d 18, 20 (Fla.1957)).
Court has explained that in custody disputes between a
natural parent and a third party, courts should give
deference to the natural parent pursuant to the common law
parental preference rule, "'unless and until there
is sufficient proof to establish parental unfitness or
substantial threat of significant and demonstrable harm to
the child.'" Corona v. Harris, 164 So.3d
159, 160 (Fla. 1st DCA 2015) (quoting LiFleur v.
Webster, 138 So.3d 570, 574 (Fla. 3d DCA 2014)). Thus,
the biological father should have been awarded custody of the
minor child unless the stepfather proved either: (1) the
biological father was unfit; or (2) remaining with the
biological father would result in demonstrable harm to the
the step-father filed for temporary custody under chapter
751, Florida Statutes. Section 751.05(3)(b), governs a
temporary custody request by an extended family member over
the objection of a natural parent and provides for the
preference of a ...