Blog

The Parents’ Rights Versus a Third Party’s Rights in a Custody Case in the Orlando, Florida Area

If someone is a Third Party who is not a biological parent of the child or an adoptive parent of the child, and there has been no finding of parental unfitness or substantial threat of significant and demonstrable harm to the child, they cannot obtain custody or time sharing of the child. A parent has priority rights to custody over third parties. 

Florida Statute 61.13 (2023) sets forth a nonexclusive set of factors the court may consider in rendering a decision concerning time-sharing and parental responsibility. The court analyzes these factors and determines the best interest of the child. However, the Florida Supreme Court has consistently held in landmark cases that this statutory provision only authorizes parents such rights and does not extend to non-parents. 

Chapter 61 Florida Statute does not allow non-parents to seek custody or visitation of a child. This statute only applies when two biological parents or an adoptive parents are fighting over custody of the child. It does not apply when a parent is fighting a relative for custody in a custody case. In those cases the third party must show the parent abused, abandoned or neglected the child. That is, the parent is unfit or the parent having custody of the child is a substantial threat of significant and demonstrable harm to the child. This applies when a dependency case is before the court. 

Further, nonconsensual grandparent visitation unconstitutionally violates a natural parent’s fundamental right to raise his or her child absent a compelling state justification. Florida appellate courts have concluded the best interest of the child is insufficient to justify granting time-sharing rights to any third party, even a stepparent or psychological parent. 

Contracts purporting to grant visitation rights to non-parents in the State of Florida are unenforceable. Florida courts do not recognize a claim for specific performance of a contract for visitation in favor of a non-parent. 

If you have more questions regarding a Marital and Family Law matter, you may call Ann Marie Giordano Gilden at Ann Marie Giordano Gilden, P.A. at 407-732-7620 and set an initial consultation. You may also visit my website at https://www.annmariegildenlaw.com

This article is for informational purposes only and does not form an attorney client privilege.