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Non-Parent Custody

Last Modified: 01/28/2020

CLSMF provides legal advice and representation to people seeking to establish custody of a child. Florida law only references custody in certain situations. If you are involved in a divorce, paternity, or domestic violence injunction case, the law does call responsibility of children who are involved in the case “custody.” Instead in those cases, the current legal term for custody is “time-sharing.” This topic page is about Custody by non-parents. The term custody is still used for Temporary Custody by an Extended Family Member and Concurrent Custody by an Extended Family Member. Family members who meet the definition of an extended family member might be able to file for custody of a child to whom they are related. 

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WHAT ARE YOUR RIGHTS?

If you are seeking temporary custody, you are seeking to function as a parent for a child who lives with you but is not your child. Temporary custody takes away the parents’ rights to make decisions about their child and allows another person to legally act as the parent. You are required to obtain an Order for Temporary Custody, which allows you to do several things: You will be able to provide consent for medical treatment of the child, obtain medical and school records of a child, enroll the child in school, provide consent to participation in school activities, and obtain child support for the child. 

An Extended Family Member is a relative of a minor child within the third degree by blood or marriage to the parent, or is the stepparent of a minor child. A stepparent is permitted to gain temporary custody of a child only if they are currently married to the parent and are not a party in a pending dissolution, separate maintenance, domestic violence, or other civil or criminal proceeding in any court involving one or both of the child’s parents as an adverse party. 

You may file for temporary custody if you have the signed, notarized consents of the child’s legal parents. You may also file for temporary custody if you are an extended family member who is caring full time for the child as a substitute parent and the child is presently living with you. The court shall award temporary custody if it is in the best interest of the child and the parents do not object. 

If one of the minor child’s parents objects to the Petition, the court shall grant it only upon a finding, by clear and convincing evidence, that the parent or parents are unfit to provide for the care and control of the child). To decide that a parent is unfit, the court must find that the parent has abused, abandoned, or neglected the child, as defined in Chapter 39, Florida Statutes which may be viewed online at http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0000-0099/0039/0039ContentsIndex.html.  If you do not have the signed and notarized permission of both parents, you should consult a family law attorney before you file your papers. A family law attorney can help you to learn how to show that the child was “abandoned,” “abused,” or “neglected” by the parent. 

Even if the court awards temporary custody to an extended family member, it  can also award timesharing for the parent if they decide that it is in the best interest of the child. 

Forms relating to temporary custody can be found online here.

Concurrent Custody by an Extended Family Member allows you to share custody of a child with the parents. Military families often use this form of custody; sometimes grandparents receive time with the children in place of a parent that is deployed. Concurrent Custody will enable you to make decisions about the child with the parents and share time with the child.

An Extended Family Member is a relative of a minor child within the third degree by blood or marriage to the parent or is the stepparent of a minor child. The stepparent must be currently married to the parent of the child and not a party in a pending dissolution, separate maintenance, domestic violence, or other civil or criminal proceeding in any court involving one or both of the child’s parents as an adverse party.

You may file a Petition for Concurrent Custody if you are an extended family member who is caring full time for the child in the role of a substitute parent and the child is presently living with you.

In addition, you must currently have physical custody of the child. You must have had physical custody of the child for at least 10 days in any 30-day period within the last 12 months and not have signed, written consent from a parent. 

The signed, written consent of the parents is sufficient to enable you to do all the things necessary to care for the child.

If you do not meet the qualifications above, you should talk to a family law attorney about other options. You may also report any suspected abuse, abandonment, or neglect to the appropriate authorities.

WHAT DO YOU NEED TO DO?

The Florida Supreme Court has approved forms that can be used to file for Temporary Custody by an Extended Family Member and Concurrent Custody by an Extended Family Member on your own. The forms can be found at the Florida Courts website under the self-help section of the site and contain detailed instructions to assist with completion and filing. Head to https://www.flcourts.org/Resources-Services/Court-Improvement/Family-Courts/Family-Law-Self-Help-Information/Family-Law-Forms.

WHAT TO CONSIDER BEFORE TAKING ACTION?

If a parent signs a consent for the temporary custody, they can seek an order terminating, or cancelling, the temporary custody at any time. 

  • In contrast, a parent that didn’t consent to the initial Petition for Temporary Custody will need to prove they are now fit to have custody to be able to seek termination of temporary custody or that all of the parties involved consent to the termination

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