Posted by Nydia Streets of Streets Law in Florida Child Custody

Sometimes, children reside with caregivers other than their parents such as grandparents, aunts and adult siblings. In these cases, the caregiver usually needs a document that authorizes the caregiver to take actions on behalf of the child such as enrolling the child in school, obtaining medical information, etc. These petitions are most easily granted when the parents agree to the custody arrangement, but they are also possible when the parents do not agree.

In the case Mendez v. Lopez, 3D17-1742 (Fla. 3d DCA 2019), the appellant appealed the trial court’s denial of his petition for custody of his younger sister. The parents of the child consented to the custody arrangement, however the trial court denied the petition with prejudice (meaning the petition could not be filed again) on the following grounds:

“1. That almost identical allegations of abuse by the minor child's parents in the home country (Guatemala) have been seen previously in other similar Petitions.

2. That in each, the terribly abusive offenders have somehow been convinced to sign consents basically admitting to these terrible acts, giving up their parental rights and surrendering custody to a family member residing in the United States.

3. That there are certain immigration benefits to these Petitions being granted in circumvention of existing immigration laws.”

The appellate court overturned this decision, holding that because the parents consented to the relief requested, it was unnecessary for the court to even consider issues related to abandonment, abuse or neglect of the child. The court also held, “Finally, it is a basic precept of our system of justice that each and every case must be determined on the facts and the law that apply to that particular case. Generalized conclusions extraneous to the case, or to the law that applies to the case, are not a proper basis for a judicial determination of the merits.” Essentially, the appellate court held the trial court went beyond its limits in considering improper motive for immigration benefits when the petition was otherwise legally sufficient.

Filing a petition for custody as a relative of a child should start with a consultation with a Florida child custody lawyer. Contact a Miami family law attorney to discuss your case.