One common misconception in Florida family law is that "grandparents have no rights." While parents are generally given the constitutional right to raise their children without interference, Florida law does recognize limited situations in which grandparents or extended family members may be granted child custody or visitation.
If you are a grandparent, aunt, uncle, or other extended family member seeking custody or visitation rights in Florida, understanding the legal process is crucial. At The Virga Law Firm, P.A., our attorneys have helped families across Florida secure legal rights to care for and protect children when their parents are unable or unwilling to do so.
When Can Grandparents or Extended Family Seek Custody?
Florida law prioritizes parental rights and generally does not allow third parties—including grandparents and other relatives—to seek custody unless specific legal conditions are met.
Under Florida Statutes Chapter 751, extended family members may petition for temporary or concurrent custody of a child in the following situations:
- The child's parents are absent, unfit, or unable to care for the child due to issues such as incarceration, substance abuse, mental illness, or military deployment.
- The extended family member has been caring for the child full-time and has had physical custody for at least 10 of the past 30 days.
- The child's parents voluntarily consent to a custody arrangement, granting the family member temporary or concurrent custody.
The law defines "extended family members" as individuals related to the child by blood or marriage within the third degree, including:
- Grandparents
- Aunts and uncles
- First cousins
- Siblings
- Stepparents (if still married to the child’s parent)
Types of Custody Available to Extended Family Members
Temporary Custody
Temporary custody grants full parental authority to an extended family member, allowing them to make all legal, medical, and educational decisions for the child. This type of custody is common in situations where:
- A parent is incarcerated or absent for an extended period.
- The child’s parent is dealing with substance abuse or mental health issues and cannot provide adequate care.
- The child has been abandoned, abused, or neglected, and a responsible relative has stepped in to provide care.
Temporary custody orders can be revoked if the parent petitions the court and demonstrates their ability to resume parental responsibilities.
Concurrent Custody
Concurrent custody allows a grandparent or family member to share custody with the child's parents. This means:
- Both the parent and family member have legal authority to make decisions for the child.
- The arrangement does not terminate parental rights but ensures the child has stability.
- The family member can enroll the child in school, make medical decisions, and access important records.
This type of custody is often used when a parent acknowledges their limitations and wants a family member to assist in the child’s care without fully relinquishing parental rights.
How Does a Family Member Obtain Custody?
Step 1: Filing a Petition for Custody
To request temporary or concurrent custody, a petition must be filed in family court, including:
- The name and address of the child, parents, and extended family member.
- A statement of the relationship between the child and the petitioner.
- A description of how long the child has been living with the petitioner and why the arrangement is necessary.
- The actions the petitioner wishes to take on behalf of the child, such as medical care, school enrollment, and legal decision-making.
- A signed and notarized parental consent form (if available).
If the parents do not consent, the petition must demonstrate clear and convincing evidence that the parents are unfit due to abuse, neglect, or abandonment.
Step 2: Serving Notice to the Parents
Once the petition is filed, the child's parents must be served with legal notice of the custody request.
- If no objection is raised, the court may grant custody based on the child's best interests.
- If a parent objects, the petitioner must prove that the parent is unfit to care for the child.
Step 3: Court Hearing and Decision
A family court judge will review evidence and determine if custody should be granted based on:
- The child’s best interests, including emotional and physical well-being.
- The ability of the grandparent or family member to provide a stable home.
- Whether the biological parents are fit to care for the child.
If the court finds that the child's safety and welfare are at risk, temporary or concurrent custody may be granted to the extended family member.
Grandparents’ Rights to Visitation in Florida
Florida law does not grant automatic visitation rights to grandparents, as parental rights are given priority. However, in limited circumstances, grandparents may be granted court-ordered visitation if:
- A court in another state has granted visitation rights to the grandparent, and the family has moved to Florida (Ledoux-Nottingham v. Downs, 210 So. 3d 1217 (Fla. 2017)).
- Both parents are deceased, missing, or in a vegetative state.
- One parent is deceased, missing, or in a vegetative state, and the other has been convicted of a felony that poses a threat to the child’s well-being.
In all cases, the court will evaluate whether granting visitation is in the child’s best interests.
Termination or Modification of Custody Orders
Temporary custody orders do not permanently terminate parental rights. A parent may petition to modify or terminate custody if they can prove:
- They have resolved the issues that led to the custody arrangement.
- They can provide a safe, stable, and supportive home for the child.
- Returning the child to their care is in the child’s best interests.
Courts prioritize family reunification whenever possible, but they will only restore parental custody if it is safe and beneficial for the child.
Speak With an Attorney Today
If you are a grandparent or extended family member caring for a child and need legal custody or decision-making rights, The Virga Law Firm, P.A. can help. Our attorneys understand the complex legal requirements for temporary or concurrent custody and can guide you through the petition process to protect the child’s best interests.
We proudly serve families across Orlando, Pensacola, Navarre, Panama City, Fort Walton Beach, and beyond. Call (800) 822-5170 or contact us online to schedule a consultation and discuss your legal options.