Posted by Nydia Streets of Streets Law in Florida Child Custody

A petition for temporary custody by an extended relative can be filed in Florida by (a) A relative of a minor child within the third degree by blood or marriage to the parent; (b) The stepparent of a minor child if the stepparent is currently married to the parent of the child and is not a party in a pending dissolution, separate maintenance, domestic violence, or other civil or criminal proceeding in any court of competent jurisdiction involving one or both of the child’s parents as an adverse party; or (c) An individual who qualifies as “fictive kin”, defined by the Florida Statutes as “a person unrelated by birth, marriage, or adoption who has an emotionally significant relationship, which possesses the characteristics of a family relationship, to a child.” A temporary custody order was at issue in the case E.L. v. A.L., 2D22-825 (Fla. 2d DCA March 3, 2023).

The father of the children in this temporary custody case were removed from his care based on a Department of Children and Families (DCF) complaint filed against him in Missouri. It was alleged at that time that he was neglecting them and using drugs around them, and that his girlfriend’s children were sexually abusing them. DCF returned the children to the father after it learned there was a plan for the children to fly to Florida to reside with their maternal grandmother. The maternal grandmother allowed the father to move in with her to address his substance abuse issues and to otherwise “get his life together.”

Shortly after moving to Florida, the father returned to Missouri to pick up a car, but he testified the maternal grandmother would not let him return to live with her in Florida, testimony which was disputed by the maternal grandmother. The father then began using drugs again and became homeless. Thereafter, the maternal grandmother filed a petition for temporary custody alleging the father’s drug abuse and his sexual abuse of the children. Her petition was granted.

In 2020, the father filed a petition to terminate the temporary custody, alleging he had a job, was off of drugs, had housing, paid child support and had a support system. The maternal grandmother had an expert testify who was a therapist who treated the children. The therapist testified that she believed the father had abused the children based on her discussions with them, and that the children were terrified of him. The trial court ultimately granted the father’s petition and cancelled the maternal grandmother’s temporary custody. She appealed.

The appellate court noted “We first discuss the trial court's failure to address the testimony of [the maternal grandmother’s] expert witness. A trial court may reject an unrebutted expert opinion when ruling on a case, but ‘it is not free to do so arbitrarily.’ [internal citation omitted]. 1997). Rather, ‘when a trial court acting as a fact-finder renders a decision that rejects the unrebutted testimony of an expert, 'it must offer a reasonable explanation for doing so, such as impeachment of the witness or conflict with other evidence.’ Morroni, 292 So. 3d at 518 (quoting Storey v. State, 139 So. 3d 448, 449 (Fla. 2d DCA 2014)).” By virtue of the trial court's order terminating [the maternal grandmother’s] temporary custody of the children and returning custody to [the father], we presume that the trial court rejected [the maternal grandmother’s] expert witness's testimony wherein she opined that it would be detrimental to return the children to [the father’s] custody at that time. However, the trial court failed to address [the maternal grandmother’s] expert witness testimony in the order. Thus no reasonable explanation was provided, as required. See Morroni, 292 So. 3d at 518. Consequently, we must reverse the final judgment on this basis.”

Next the appellate court discussed the trial court’s failure to make a finding of whether returning the children to the father’s custody would be detrimental to their welfare. The court noted that the Florida Statutes do not require such a finding. The court held “However, while we do not believe that a trial court must make a finding of no detriment when custody is returned to a biological parent, detriment must at least be considered. Unfortunately in this case, we cannot determine if the trial court did so. And this is especially problematic in this case because [the maternal grandmother’s] expert opined on the issue of detriment, yet the trial court failed to address that testimony. Thus we cannot determine if the trial court rejected the expert's opinion on that issue or if the trial court simply failed to consider it.”

Schedule your meeting with a Miami family law attorney to understand your options as an extended relative seeking custody of children or a parent defending against this type of petition.