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Priority and Preference in a Custody and/or Guardianship Case of a Minor in Orlando, Florida

There are many situations in which a relative may want to obtain custody of a grandchild, a niece or a nephew. They may pursue custody action under Florida Statute 751, which is Long Term Relative Custody by an Extended Family Member, or under Florida Statute Chapter 744.3021, Guardianship of a Minor. 

Choosing a Direction

Deciding how to proceed on the custody matter may depend on the relative’s individual circumstances. There are things to consider when making the decision. If the child will receive more than $15,000.00 in net proceeds from a settlement, then a guardianship is required for the guardian to be able to manage the ward’s assets and for the court to have oversight of the guardian’s management of the assets. 

When thinking about how to proceed, remember that parents have priority over other relatives who are not the parents of the child. That can become an issue if the parents vacillate on whether they want you to have custody of their child. In Florida, parents are the natural guardians of the minor child unless the court enters an order stating otherwise. As natural guardians, parents have a fundamental liberty in the care, custody, and management of their children. Will the parents consent to a guardianship and or long-term relative custody of the child? Will they fight you on this matter? If they will fight you on this matter, are the parents unfit to care for the child?

Protecting the Child

A relative may want to consider that the overwhelming public policy of guardianship law is the protection of the ward. Section 744.312(2) Florida Statute (2019) titled “Considerations in appointment of guardian,” provides that a trial court may appoint any person who is fit and proper and qualified to act as guardian, whether related to the ward or not. The statute then gives preference to the appointment of a person that is related by blood or marriage to the ward. 

However, a non-blood relative cannot have custody under Florida Statute 751, the Florida Statute on Custody by Extended Family Member. Florida Statute 751 requires that the relative petitioning for child custody be an extended family member of the child who has had physical custody of the child for 10 days within any 30-day period in the last 12 months. 

The Child’s Preference

You should also consider the fact that the guardianship statute requires that the court consider the preference of a minor who is age 14 or over as to who should be appointed guardian. However, while the wishes of the ward are considered in appointing a guardian, they are not controlling.

If you have more questions regarding custody in a Marital and Family Law matter or Guardianship matter, you may call Ann Marie Giordano Gilden at Ann Marie Giordano Gilden, P.A. at 407-732-7620 and set an initial consultation. 

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