A Florida Appeals Court Revives an Adult Brother’s Effort to Obtain Temporary Custody Over His Minor Sister

Many times custody cases involve a parent who is seeking to assume, or expand, the extent to which he or she has parental responsibility for the child. However, sometimes, circumstances might dictate that an extended family member assume temporary custody for a minor child. If you were in that position, would you know how to take the proper steps to obtain legal custody? With an outcome as important as this, you need to be sure, so make certain you have a knowledgeable South Florida family law attorney giving you the assistance you need.

A case litigated in Miami presented this type of extended-family-member-custody scenario. J.M. was a man originally from Guatemala residing in Florida. J.M. sought temporary custody of his minor sister through the Florida courts. The older brother’s legal petition indicated that the parents had abused the girl in her home country of Guatemala and that the parents had consented to their adult son assuming temporary custody over their minor daughter.

The trial judge was highly dubious of the accuracy of the assertions made in J.M.’s petition. The judge noted that, if everything in J.M.’s petition was true, then the “terribly abusive” parents had signed documents “basically admitting to these terrible acts.” The judge also pointed out that there were “certain immigration benefits” of the request being granted “in circumvention of existing immigration laws” For those reasons, the trial judge dismissed the request for temporary custody.

On appeal, however, the adult brother was able to revive his pursuit of temporary custody. The legal rules in Florida for an “extended family member” (which would include an adult sibling) seeking temporary custody are very specific in relation to what you do and do not need to get a hearing. The law says that an extended family member can seek temporary custody under either of a couple of scenarios. One is if the child in question is living with the extended family member who is seeking temporary custody and that extended family member “is caring full time for the child in the role of substitute parent.” The other is if the extended family member has a document, signed by the parents and notarized, stating that the parents give their consent to the extended family member’s assuming temporary custody.

In J.M.’s case, in the absence of evidence that the document the parents signed was fraudulent or otherwise not valid, the adult brother met the standards of the second of these two avenues for temporary custody by an extended family member. Both the father and the mother consented, and reserved their rights to re-establish custody at a later date.

Once there is valid proof of consent by the parents, the law requires the trial court to hold a hearing and assess the child’s need for care by the extended family member seeking temporary custody. If the evidence demonstrates that the extended family member’s assuming temporary custody is in the best interest of the child, the court is required to award custody to that extended family member. In other words, the brother was entitled to his hearing to argue for temporary custody.

Whether you are a parent or an extended family member, when you embark on a custody case, it may be the most important litigation you’ll ever undergo. Don’t leave anything to chance. Consult the skilled South Florida family law attorneys at Sandy T. Fox, P.A., where our attorneys have been providing clients with help representation for many years. Contact our attorneys online or by calling (800) 596-0579 to schedule your confidential consultation.

More blog posts:

‘Ultimate’ Decision-Making Authority and Florida Parental Responsibility Cases, Fort Lauderdale Divorce Lawyer Blog, Feb. 5, 2019

Paperwork Problem Costs Florida Grandmother When Father Challenges Custody Ruling, Fort Lauderdale Divorce Lawyer Blog, Nov. 10, 2016

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