Florida Family Lawyer Blog

Sometimes a grandparent may come to the sad conclusion their grandchild’s parent is an unfit parent. In Florida, when the court determines child custody, a nonparent, such as a grandparent, may only be awarded custody of a child when clear and convincing evidence has been presented demonstrating that the child’s mother or father, or both are unfit and threaten the welfare of the child. Why is this such a hard burden for grandparents to overcome? Courts have repeatedly determined that parents have a natural and legal right to the custody of their children which the Constitution protects. Depriving parents of their natural right to parent is a drastic measure and in such circumstances the courts often proceed with caution.

The first question which must be answered is whether grandparents have standing to bring a claim for custody when the child’s parents, although allegedly unfit to parent, have not given up their custody of the child? In Florida, although grandparents do lack standing to bring a custody action against a child’s parents where the parents have not relinquished custody, if the grandparent seeks custody of their grandchild during a divorce or dependency action, grandparents may have a right to intervene. In a divorce proceeding, a grandparent cannot institute a separate cause of action to obtain custody of the grandchild, but may only be granted a right to intervene. However, a grandparent may separately petition for primary residential custody of his or her grandchild through a dependency proceeding. In this dependency proceeding, the grandparents may only be awarded custody if the court first determines the child is, in fact, a “dependent.”

The next, and more difficult step for the grandparent, is to establish why he or she should have custody of the child rather than the natural parent. In making the determination of whether a nonparent should obtain custody of a child rather than the natural parents, the evidence must clearly and convincingly demonstrate that the parent is “unfit,” meaning they lack the adequate ability to care for their child. A court must then decide whether it is in the child’s “best interests” to remain with his or her natural parent or whether it would be better for the child to live with the grandparent. The bottom line is this – the grandparents must prove to the court that the child’s parents are unfit in some significant way! Because the right to parent a child is a fundamental right, the courts will not intervene unless there is a clear and convincing showing that significant harm to the child is threatened if the parent retains custody. In evaluating the fitness of the parent the court will look to several factors, including: (1) parent’s moral unfitness (and if this bears on the child’s welfare – including if parent’s sexual conduct has had an adverse impact on the child); (2) whether the parent has a clear pattern of irresponsibility in the parental role; (3) the parent’s health, both mental and emotional; (4) any sign of alcohol or drug abuse; and (5) adultery or marital misconduct (but it must have a direct affect on the child). It is up to the a grandparent to clearly and convincingly show evidence of the parents’ unfitness (using these factors as guidance), and both parents are found by the court to be unfit, the court will award custody to a close relative who is fit, ready, willing, and able to maintain custody of the child– which in this example, is the grandparent.

There are two important caveats a grandparent of a child whose parents are unfit must recognize. First, where children are of sufficient age and intelligence, Florida courts have given credence to the child’s own preference in its determination of whether to place the child with his or her natural parents or a nonparent, like the child’s grandparent. But it is important to realize that this is just one factor the court will look to, and in no way controls that court’s final decision. And second, a court has the option to only award a grandparent temporary custody until the parent can establish that they are “fit” to parent their child.

Therefore, if you are a grandparent who believes that you should have custody of your grandchild due to unfit parents, it would be best to consult an attorney to establish a proper strategy to accomplish that goal.