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  • Writer's pictureJarbath Peña Law Group PA

Temporary Custody by a Relative

We all know that life has its ups and downs. Every day, we deal with issues in our own lives but still do our best to provide a stable home for ourselves and our loved ones. But sometimes, other people’s lives and issues can affect us. This is never more obvious than when the “other people” whose lives are in shambles are our relatives. We usually have empathy for our relatives and want to help them. Sometimes, that help comes in the form of taking care of their children while the relative gets their life in order. There are many scenarios where this may be the case. In some cases, all parties agree that it is the best thing for the children. In other cases, courts must circumvent parental rights to protect the innocent.

Why Is Official Temporary Custody Necessary?

Often, a relative taking temporary custody of a child requires nothing more than an agreement between the child's legal parents and the relatives taking temporary custody. The problems start to creep in when the custody is for an extended period of time. There are certain things that a child may need that a relative cannot give them if they don’t have official temporary custody of that child. These include such things as:

  1. The ability to consent to medical care, including all necessary and reasonable dental and medical care;

  2. Retrieving copies of the child’s birth certificate, educational records, and medical, dental, and psychiatric records; and

  3. Enrolling the child in school and giving consent for the child to be tested or placed in special school programs.

You need temporary custody for many other things, such as having the ability to consent for a child to participate in school activities.

Relatives Who Can Get Temporary Custody

Florida Statutes § 751.011 defines an “extended family member” as a person who is:

(a) The minor child’s relative by blood or marriage within the third degree;

(b) The minor child’s step-parent if they are currently married to the child’s parent and are not a party in a pending dissolution, domestic violence, separate maintenance, or other criminal or civil proceeding involving one or both of the child’s parents as an adverse party; or

(c) An individual who qualifies as “fictive kin” as defined in Florida Statutes § 39.01(28).

With all of the above taken into consideration, an extended family member would include a:

  • Niece or nephew,

  • Brother or sister,

  • Uncle or aunt,

  • First cousin,

  • Great uncle or great aunt,

  • Grandparent, or

  • Great grandparent.

Generally, fictive kin is someone unrelated by birth, marriage, or adoption who has an emotionally significant relationship—possessing the characteristics of a family relationship—to the child. Anyone who fits this category is considered an extended family member who is eligible to file for temporary custody of a minor child.

How to File for Temporary Custody by a Relative

If the child's legal parents and the relative who needs temporary custody reach an agreement, they can simply file Family Law Form 12.970(a) with the Clerk of Court. There are a number of instructions on how to do this properly. Of course, hiring an experienced family law attorney is always the best option. They can guide you through the paperwork process and file the necessary forms on your behalf.

The requirements to file a Petition for Temporary Custody include:

  • You must have the signed, notarized consent of the children’s legal parents, or

  • You must be an extended family member with whom the children are currently living and who is caring for them full time as a substitute parent.

Additionally, you must currently have physical custody of the child and have had physical custody of them for at least 10 days in any 30-day period within the last 12 months.

What If I Don’t Have a Parent’s Consent?

Suppose you are trying to file a Petition for Temporary Custody of your relative’s children to protect them, but one of the minor child’s parents objects to that petition. In that case, you really need to hire a family law attorney. The court will only grant your petition if the judge finds clear and convincing evidence that the child’s parents are unfit to care for the child. To make this finding, the judge must determine that the parents have abused, abandoned, or neglected the child.

This is not an easy case to make. You may think that it is obvious that the child’s parents have behaved in an unacceptable way or that they clearly need help before they can handle the responsibilities of caring for the child. However, proving this in a court is an entirely other matter than just “knowing” it. To build a winning case of this nature, it takes detailed knowledge of what type of evidence is needed, as well as an intimate understanding of the rules of evidence. Specifically, you need to know if text messages, emails, Facebook posts, and a whole host of other pieces of evidence are admissible. And if they are, you need to know how to get them properly admitted into evidence. Most laypersons do not possess this type of knowledge.

Therefore, you are going to need an experienced attorney to properly file these petitions and prove your case to the judge. Note that a temporary custody order does not terminate the biological parent's rights. You will need to apply for permanent custody to sever the rights of the child’s biological parents.

We Are Here to Help

The attorneys at the Jarbath Peña Law Group are here to give you the answers you need. When you find yourself in the situation of having to gain temporary or even permanent custody of a relative’s child, we are here to help you make that happen.

Call us today at 305-615-1005 or contact us through our online contact form. Let our staff of legal professionals use their years of experience to take care of the details of your Petition for Temporary Custody. Contact us today!

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