Posted by Nydia Streets of Streets Law in Florida Child Custody

When both parents are unable to maintain custody of their child in Florida, it is possible to grant temporary custody to extended relatives such as grandparents, aunts and uncles. This can be accomplished by agreement or by a showing that the parents are unfit to look after the best interest of the child. In the case Kitchen v. Cerullo, 3D18-1603 (Fla. 3d DCA December 18, 2019), the father appealed an order which took away his recently granted custody rights and granted temporary custody to his child’s maternal grandmother.

The evidence showed the mother was incarcerated on drug charges. As a result, the father was granted custody of the parties’ child. Months after he was granted custody, he petitioned to relocate to Tennessee, and that petition was granted. Two months later, the father was arrested on domestic violence charges involving his wife, the child’s stepmother. Accordingly, the mother of the child filed a motion to challenge the relocation and to temporarily place the child with the child’s maternal grandmother. The court granted the mother’s motions and the father appealed. While his appeal was pending, the father asked the appellate court to relinquish jurisdiction to the trial court to allow it to rule on the father’s pending motion to vacate the two orders.

The appellate court did relinquish jurisdiction for the limited purpose of allowing the trial court to determine whether or not it would vacate the orders on appeal. Instead of doing so, the trial court held an evidentiary hearing as to the issue of placement of the child with the maternal grandmother. The trial court ultimately denied the motion to vacate and ordered continued placement with the grandmother. The father also appealed this order.

In a consolidated appeal, the appellate court reversed the trial court’s orders. First, it held the trial court exceeded its authority when it held an evidentiary hearing and made a ruling concerning continued placement with the grandmother since the appellate court only relinquished jurisdiction for the limited purpose of deciding the merits of the father’s motion to vacate. Next, the appellate court ruled “[W]e hold that removing the minor child from Kitchen's custody was error where there was insufficient evidence to demonstrate that Kitchen was "unfit" under section 751.05(3), Florida Statutes (2018). More specifically, there was no evidence that the minor child was present during the alleged act of domestic violence, nor any evidence that the minor child suffered harm as a result of the alleged incident.”

Since there was a lack of clear and convincing evidence as to the father’s ability to care for his child, the appellate court reversed the trial court’s order that affected his custody rights. If you are facing a Florida child custody case, schedule a consultation with a Miami family law attorney to go over your rights.