Posted by Nydia Streets of Streets Law in Florida Child Custody
Florida law has changed as it relates to paternity beginning July 1, 2023. Now, unwed fathers have greater standing when it comes to asserting parental rights. Before, the mother of a child born out of wedlock was considered the natural guardian of the child and therefore entitled to full custody and control of the child until a court order was entered otherwise. Recent legislation changed this. The case Miller v. Gordon, 1D22-888 (Fla. 1st DCA July 5, 2023) was decided based on now inapplicable law, but it still makes an important distinction when it comes to determining a temporary parenting plan.
The parties in this paternity case lived together with their child until they decided to end their relationship. Thereafter, the mother moved with the child to New Hampshire, and the father filed a petition to determine paternity and related relief. No final hearing has been held yet, and the court entered a temporary parenting plan based on the father’s request. The father appealed because the temporary plan did not have all of the provisions he requested in his motion.
The appellate court affirmed the order. One important take-away from the appellate opinion is the holding “We mentioned already, however, that we are here to review a temporary order, not the final order provided for in section 61.13(3). Indeed, nothing in chapters 61, 741, or 742 of the Florida Statutes expressly provides for a temporary time-sharing schedule or parenting plan like those contained in the order on review here. But cf. § 61.13001(6), Fla. Stat. (providing for a ‘temporary order’ in child-relocation context); § 61.503(3), Fla. Stat. (defining ‘child custody determination,’ as used in the Uniform Child Custody Jurisdiction and Enforcement Act (‘UCCJEA’), to mean a court order ‘providing for the legal custody, physical custody, residential care, or visitation with respect to a child,’ and to include ‘a permanent, temporary, initial, and modification order’). Section 61.13(3) contemplates just a final order making this determination, with a modification allowed only where there has been ‘a substantial, material, and unanticipated change in circumstances.’ Id. At the same time, the circuit court still has the authority to render a temporary order in this space. See Martinez v. Martinez, 573 So. 2d 37, 40 (Fla. 1st DCA 1990) (‘Orders providing for temporary custody or temporary primary residential care are appropriate to enter while the case is pending before the entry of final judgment.’). This is so because these proceedings are in equity.”
Schedule your meeting with a Miami family law attorney to understand how the law may apply to the facts of your case.