Posted by Nydia Streets of Streets Law in Florida Child Custody
When an unwed father and mother disagree on child custody, and there is no court order concerning a time-sharing arrangement, who has superior custody rights? Prior to July 1, 2023, the Florida Statutes granted an unwed mother of a child born outside of wedlock superior custody rights. However, a change in the law recognizes the parental rights of a man who has established paternity under Florida law. This was an issue in the case McClam v. Carrier, 4D2023-0787 (Fla. 4th DCA October 18, 2023).
The mother in this case appealed the trial court’s denial of her motion for pick-up order. The trial court denied the motion on the basis that the father established his paternity and the parties had a written agreement as to custody and time-sharing. The appellate court reversed, holding “At the time of the trial court’s ruling, case law interpreting the statute provided that the establishment of the father’s paternity alone does not give him custody rights, and an emergency pickup order is not a vehicle to make an initial custody decision. See Nelson v. Mirra, 335 So. 3d 236, 238 (Fla. 5th DCA 2022). Thus, the trial court erred by denying the mother’s emergency pickup motion because of the father’s established paternity.” The court concluded “The court also erred in denying the motion based on an agreement between the parties which the court did not review or approve. Section 744.301(1) required a court order to entitle anyone other than the mother to primary care and custody of the child.”
The opinion acknowledged that after the trial court’s ruling was made, the law changed, but it analyzed this case under the then-existing law when the trial court denied the motion. Schedule your meeting with a Miami family law attorney to understand how the law may apply to your case.