Temporary Custody by Extended Family Member
Temporary custody by extended family member allows relatives within the third degree by blood or marriage to obtain legal custody of a child. Relatives within the third degree may include grandparents, great grandparents, aunts, and uncles. Florida law has been expanded to allow “fictive kin” to seek temporary custody. “Fictive kin” includes non-relatives with whom the child has an emotionally significant relationship that is similar to a family-like relationship. This could include godparents, extended family that is not related within the third degree, or even unrelated persons, so long as the prospective legal custodian can prove an emotionally significant relationship with the child.
In Florida, parents may delegate a child’s care to a relative or family member if they are temporarily unavailable or unable to care for a child. Situations may include a parent on temporary remote work assignment; an ungovernable child; or a parent struggling with substance abuse, housing instability, or who is facing incarceration.
The child’s caregiver may need formal documentation to prove their authority to act on the child’s behalf, such as for:
- school registration
- authorizing vaccinations required by a daycare or school
- obtaining health, dental, or vision insurance
- authorizing preventive, elective, emergency, or extraordinary medical care
- enrolling the child in mental health services
- enrolling the child in occupational, speech, or other therapies
- registering the child for extracurricular activities and field trips, and signing related releases, consents, and waivers
- purchasing plane tickets or cruise passage
- traveling with the child on vacation, especially international travel
There are a variety of legal solutions available to the child’s custodian or caregiver that range in cost, complexity, intrusiveness, and permanency.
Something as simple as a signed letter from a parent may be sufficient for some purposes. Other times the third party may require more formal documentation.
A power of attorney is another common solution used by parents and caregivers, but these involve a lot of uncertainty. Third parties are not required to accept a power of attorney. Under Florida law, a third party does not have to give a reason for rejecting a power of attorney and may reject it for no reason. F.S. §709.2120(1). Third parties often reject powers of attorney based on liability concerns and are unwilling to incur the cost of an attorney to review the power of attorney for legal sufficiency. Once it becomes known the power of attorney will not suffice, the child’s parents may no longer be available, or willing, to provide supplemental authorizations.
Temporary custody cases are a more comprehensive, reliable solution to ensure a caregiver’s legal authority to act on the child’s behalf. A temporary custody case results in a formal court order that grants the custodian the same rights as a parent on temporary basis.
If temporary custody is granted, the court will issue an order authorizing the legal custodian to enroll the child in their school zone, obtain medical care, and otherwise take care of the child’s needs. The legal custodian may, but is not required, to seek court-ordered child support. Temporary custody cases can be stipulated (meaning a parent consents to the custodial arrangement) or contested. If contested, the person seeking custody must prove (i) they have actual physical custody of the child at the time the petition is filed and (ii) the parent’s acts or omissions that constitute abuse, neglect, or abandonment. The court order may condition the return of custody to a parent on evidence of rehabilitation and completion of a transition plan. Temporary custody cases are sometimes used to prevent DCF from sheltering, or taking emergency custody of, a child when a parent is unable or unavailable to parent their child. Temporary custody cases could also be used to support Florida residency for in-state tuition.
Temporary custody cases are not as costly, permanent, or severe as guardianship or termination of parental rights. Unlike a plenary guardianship, temporary custody cases do not require medical experts and annual reporting to the court. Unlike termination of parental rights, a parent always retains the right to re-open a temporary custody case to ask the court to restore their custody.
