Posted by Nydia Streets of Streets Law in Florida Child Custody

In a case of special circumstances, a non-biological parent was granted parental rights of a child born during a marriage in the case Thomas v. Joseph, 1D19-0102 (Fla. 1st DCA September 18, 2019). The parties in this case were involved in post-judgment litigation in which the parental rights of the non-biological parent were cancelled by the trial court’s order.

During the parties’ marriage, it was alleged that the former husband fathered a child outside of the marriage. The biological mother of the child then gave the child to the former husband and former wife to raise as their own. In the parties’ divorce, the court recognized the former wife did not have any biological connection to the child, recognized the former husband as the child’s legal parent and determined it was in the best interest of the child to remain in the primary care of the former wife with the former husband having visits every other weekend.

The former husband subsequently filed a petition for modification, six years after the original final judgment was entered. He contended he was the parent better-suited for primary residential care of the child. After a hearing, the trial court entered a final judgment which eliminated all parental rights and timesharing for the former wife as it related to the child, finding that she had no legal parental rights regarding the child. The former wife appealed. On appeal, the trial court’s order was reversed on the basis that the original final judgment was never appealed, therefore the former wife’s standing as the legal parent of the child remained.

The appellate court held, “It may well have been error for the final judgment, in effectuating the agreement of the parties, to deem [the former wife'] a parent of Z.J. But the final judgment was never appealed and there is no indication in the record that any party ever challenged its validity until [the former husband’s] petition for modification was filed five and a half years later. As stated in Wade v. Hirschman, 903 So. 2d 928, 932-33 (Fla. 2005), "After the trial court enters the original final judgment decree, it is res judicata of the facts and circumstances at the time the judgment became final." Even a potentially erroneous judgment is entitled to res judicata effect. [The former wife] correctly relies on the final judgment of dissolution as the status quo for these parties' parental responsibilities and timesharing with Z.J. until properly modified. Because it is res judicata of the rights and obligations of the parties as of the time it became final, the final judgment is equally effective to establish [the former husband’s] status as Z.J.'s father and [the former wife’s] parental status with shared parental responsibility and majority timesharing. Any modification of the parental responsibilities and time-sharing schedule in the judgment of dissolution must comply with the requirements of section 61.13(3), Florida Statutes (2018).”

Many non-biological “parents” assume the role of parent to a child for a variety of reasons. Because Florida law is clear on who has parental rights, it is important that a person who wants to ensure that he or she continues to remain in the child’s life takes the proper legal steps to protect the relationship. Schedule a consultation with a Miami child custody lawyer to determine what steps should be taken to protect your parental rights.