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Third Party Custody


Are you a grandparent or relative of a minor child who was recently orphaned or lives in an unsafe home? Are you seeking visitation with your grandchildren? Grandparents’ rights and third party custody vary from state to state. In Florida, grandparents and third parties are only awarded custody if they can establish that the biological parent(s) have abandoned the minor child, are unfit to care for the child, or de facto custody to the parent would be “detrimental to the child.”

Biological parents have a fundamental right to raise their minor children. Courts can only remove a minor child from the custody of the parents where the child is found to be in an abusive home, is abandoned, or the parents are incarcerated or deceased. In addition, courts will only award visitation to grandparents if visitation does not cause material harm to the relationship between the birth parent and minor child, and grandparent visitation would be in the best interest of the child. Florida courts have found, in similar cases where custody battles ensue between the parents and grandparents, that grandparents have a presumptive burden to overcome in seeking visitation or custody. The law grants “… superior rights to a natural parent who is not unfit or would not be a detriment to the welfare of the child.” In addition, if the parties cannot agree to a visitation schedule on their own, the court is reluctant to interfere if doing so would cause material harm to the parent-child relationship. If granting grandparent visitation would undermine a parent’s authority and decision-making, or negatively affect the child’s relationship with their own parent, it’s rare that the court would award visitation to the grandparent.

Applying for Adoption or Legal Guardianship in Florida

If the child is now unfortunately orphaned, and their parents did not name a legal guardian in their will, family members can petition the Florida courts for legal guardianship. Legal guardians are not officially adoptive parents but are legally responsible for the care and upbringing of the child, including in some cases, administering the child’s estate. Grandparents who wish to apply as adoptive parents have to apply through the state sponsored adoption agency or with the courts. This process is arduous, and it’s highly recommended that you consult an attorney for assistance before applying for adoption.

Grandparents’ Right to Visitation

Florida law dictates that grandparents do have a limited right to visitation with their minor grandchildren, if the children are no longer in the custody of the birth parent. For example, if a child is now in the custody of the foster system, a grandparent may request unsupervised visitation with the child given they meet certain criteria, clear a background check and a visitation would otherwise be in the child’s best interest. If the minor child was removed from the biological parent’s home, and the grandparent attempted to use visitation as an opportunity to reunite the unfit parent with the child, the grandparent would automatically lose visitation rights. Once the child is a ward of the state and considered a dependent child, requests to adopt must be made with the Department of Children and Families.

Otherwise, if the grandparent seeks visitation rights from the birth parent, and the birth parent still retains custody over the child, the birth parents have the right to refuse visitation. Parents have a right to choose who is able to see their children, and unless both birth parents are deceased, missing or in a persistent vegetative state, or a remaining parent is a convicted felon, grandparents’ desire to see their grandchildren does not trump a parent’s wish to decline visitation.

Contact William Wallshein, P.A. Today

If you are in a unique quandary regarding your grandchildren, contesting custody from the biological parents or seeking to adopt your orphaned grandchild, call West Palm Beach grandparents’ rights lawyer William Wallshein today for a consultation.


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