While children are minors, parents have the authority to act on their behalf and make decisions regarding their well-being. Parents can enroll their children in school, consent to medical treatment, and give permission for a child to participate in activities. When a parent cannot care for their children for any reason, giving this authority (i.e. child custody) to someone else is necessary.
When parents know they will be away from their children for a brief time, they can designate someone to make decisions on their behalf. This is accomplished through a healthcare surrogate and power of attorney explicitly drafted to delegate parental authority to another individual on a temporary basis. Typically these documents are used when there is a defined period of time when the parents will be absent or unable to care for their children. This could be a situation where parents are taking a vacation and leaving their children in someone else’s care.
If parents cannot care for their children for more extended periods or their absence is unexpected, and the children are not residing with the parents, it may be necessary to obtain a court order to grant someone else the authority to care for their children. Often time, extended family members are preferred in these circumstances.
In Florida, there are two ways for an extended family member to obtain custodial rights over children in the form of concurrent custody and temporary custody.
Concurrent custody is when an eligible extended family member is awarded custodial rights to care for a child concurrently with the child’s parent or parents. Florida Statute §751.01(1). This means that parents can designate an extended family member to have the same custodial rights as they have without giving up their custodial rights. Think of this as designating an extra parent that can do everything a parent can do without restricting the parent’s own custodial rights. Concurrent custody is established by the agreement of the parents and the extended family member when a child resides with the extended family member.
Concurrent custody can be terminated at any time by one or both parents. Concurrent custody is most useful in situations where parents need assistance caring for their children when one or both of the parents will be unavailable for an extended period of time. This may be due to a parent’s extended illness or military deployment.
Temporary custody is where an eligible extended family member is awarded custodial rights for a child, but these rights are not concurrent with the child’s parent or parents. Parents can agree to an extended family member having temporary custody of their children, or an extended family member can petition the court to obtain temporary custody without the parent’s consent.
There are two main differences between temporary child custody and concurrent custody.
First, concurrent custody provides that the extended family member’s custodial rights are in addition to the parent’s custodial rights, and the parent’s custodial rights are not diminished. With temporary custody, the extended family member’s custodial rights are established, and the parent’s custodial rights are suspended. This is not a termination of the parent’s parental rights but rather an order that the extended family member is the one to have custodial rights superior to the parent’s on a temporary basis. The second difference is that concurrent custody can be terminated by either parent giving written notice to the court that they wish to end the concurrent custody. Temporary custody can be terminated, but it must be by agreement of all parties, meaning the parents and extended family members, or the court must enter an order that the temporary custody is terminated.
So, who is considered an extended family member for the purposes of temporary or concurrent custody?
Florida Statute §751.011 defines “extended family member” as a relative of a minor child within the third degree by blood or marriage to the parent and a stepparent of a child if the stepparent is currently married to the parent of the child and is not involved in a pending case against the parent. A qualifying relative of a minor child within the third degree by blood or marriage would be an adult who is the child’s grandparent, brother, sister, great-grandparent, aunt, uncle, niece, or nephew.
There are many reasons why an extended family member would seek temporary custody of a child. When an extended family member seeks temporary custody, both parents cannot care for the children. In some circumstances, one parent has passed away, and the surviving parent is unable to care for the children. Sometimes both parents have the same issue that prevents them from caring for the children. In other cases, one parent agrees to an extended family member having temporary custody, but the other parent does not agree. In these cases, the extended family member must demonstrate to the court why the non-consenting parent should no longer retain custodial rights over the child.
Some circumstances that we have most frequently dealt with at McCart & Tesmer, P.A. have involved the following:
- One or both parents have suffered from substance abuse issues;
- One or both parents have suffered from severe mental health issues that prevent their ability to parent their children;
- One or both parents have a severe illness where they are unable to care for their children;
- One or both parents are incarcerated;
- One or both parents have left the children with an extended family member for 30 days or longer without proper plans for the family member to act on behalf of the children.
There are many circumstances where an extended family member may need to seek temporary custody of a child that we may not have listed. Regardless of the situation, meeting with an attorney with experience with temporary custody matters is essential to discuss the facts unique to your family.
The attorneys at McCart & Tesmer, P.A. have experience assisting clients with temporary and concurrent custody cases and are able to discuss your unique legal issues with you.
To obtain temporary custody in situations where both parents are living, but one or both have not signed consent, the extended family member will have to have a hearing.
In order to obtain temporary custody, children must be living with the extended family member full time, with the extended family member caring for the children in the role of a substitute parent. Additionally, the extended family member will need to establish that the parent or parents have abused, abandoned, or neglected the children and that granting the extended family member temporary custody is in the children’s best interest.
While temporary custody implies the custody granted to an extended family member will only be for a temporary period of time, there are circumstances where this type of custody extends until a child becomes an adult. The length of custody is determined by the child’s age and the reasons for granting temporary custody. The court also will likely want a provision where the parents have visitation or time-sharing with their children. This may be to maintain the parent/child relationship or plan to eventually transition custody back to the parents.
Child support is also a factor to consider in temporary custody. If either parent is ordered to pay child support, the court may redirect this support to the extended family member in a temporary custody case.
If you have questions regarding temporary or concurrent custody issues or are an extended family member seeking custody of a child you are caring for, please contact the experienced attorneys at McCart & Tesmer at https://mccarttesmer.com/contact-us/ or call 813-398-2757 for a free consultation.
