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Temporary Custody of Minor Children by an Extended Family Member

There are times when an extended family member will want temporary custody or concurrent custody of a child who is not their own. To do so, the family member will need to file a petition with the court. The filing fee for this is about $400.

Temporary Custody

Temporary custody refers to the parents of the child permitting an extended family member to temporarily become the child’s “parent.” This will allow that individual to live with a child who is not his or her own and includes making decisions regarding the child’s medical, educational and recreational needs and wants. It also allows the individual to obtain a passport for the child or birth certificate, and carry the child on their health insurance plan.

An extended family member who may file a petition for temporary custody must be a relative of the child within the third degree by blood or marriage to the parent, or a stepparent of the child if the stepparent is currently married to the parent and is not a party in a pending dissolution, separate maintenance, domestic violence, or other civil or criminal proceedings involving one or both of the parents as an adverse party.  See, Section 751.011, Florida Statutes. Further, the petitioner will need the signed, notarized written consent of both of the child’s parents and waivers of their parental rights. If the petitioner is already caring full-time for the child who is residing with the petitioner, then consent of both parents is not required if the parent abandoned, abused or neglected the child.

Abandonment of a child under Fla. Statutes § 39.01 means that the parent, though having the ability to do so, has ceased to or has made no significant contribution to the child’s care and maintenance or has failed to establish or maintain a substantial and positive relationship with the child. In other words, the parent might be visiting the child infrequently or rarely contacts the child and makes few if any decisions regarding the child or otherwise exercises his or her parental rights and responsibilities. Token visits are not sufficient to overcome this definition. A parent who is incarcerated or who is frequently incarcerated may be deemed to have abandoned the child.

Abuse refers to a willful act or threats of acts that results in physical, mental or sexual abuse, injury or harm to the child or which is likely to cause the child’s physical, mental or emotional health to be significantly impaired.

If there are other pending cases involving the parents, child or the petitioner or these same issues, or a case that could affect the court’s jurisdiction in this matter, then the petitioner must file a Notice of Related Cases.

Temporary custody of the child by the extended family member may end if all parties consent or the court finds that it is in the best interests of the child.

Concurrent Custody

Concurrent custody is exactly what it implies—the parents of the child grants the extended family member custody rights without relinquishing their own rights.

To file for concurrent custody, you will need:

  • Signed, notarized written consent from both parents
  • Or, the child is currently living with you full-time and you are acting as the substitute parent
  • And you have had physical custody of the child who has lived with you for at least 10-days in any 30-day period within the past 30-days

If one parent objects, the petitioner can only obtain temporary custody if there is evidence that the parent abandoned, abused or neglected the child. Under concurrent custody, all the parties may make decisions regarding the child’s medical and educational needs and other major decisions affecting the child’s welfare as well as obtain any official documents pertaining to the child.

The child’s parents can take physical custody of the child at any time. As the concurrent parent, you are entitled to child support.

If you are an extended family member within the meaning of Florida law and wish to obtain either temporary or concurrent custody of a child, you need to discuss your options and the necessary conditions to successfully petition the court with a Florida family attorney. If there are other matters pending, this could delay or prevent you from obtaining either type of custody as could the objection of a parent. You need to be aware of the requisite conditions to gaining these types of custody and the responsibilities they entail before you file.