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Morris v. Morris

Florida Court of Appeals, First District

April 30, 2018

Christopher Morris, Appellant,
Sean Morris, Appellee.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

          On appeal from the Circuit Court for Dixie County. Jennifer J. Ellison, Judge.

          Kyle J. Benda of the Law Office of Knellinger, Jacobson & Associates, Gainesville, for Appellant.

          M. Michael O'Steen of M. Michael O'Steen, P.A., Cross City, for Appellee.

          M.K. Thomas, J.

         The 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.

         Following 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.

         By way 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.

         The 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.

         The 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.

         Following 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."

         As the 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)).

         This 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 minor child.

         Here, 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 ...

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