It is not uncommon for minor children to be living with only one of their parents or neither. Since minors do not have the capacity to make various legal decisions, the question often arises as to who, in the above scenarios, does have that authority.
Custody law can be contentious and complicated. While it is beyond the scope of this blog to address the entire subject, the natural starting point is section 744.301, Florida Statutes.
Section 744.301(2) provides that parents, as the natural guardians of their children, have the authority to make legally binding decisions on behalf of their minor children in personal injury cases. However, the authority is not absolute.
When the parents are living together with the children, the decision making is shared jointly. It is a different story when the parents are divorced and living apart. Section 744.301(1) provides that “the natural guardianship belongs to the parent to whom sole parental responsibility has been granted, or if the parents have been granted shared parental responsibility, both continue as natural guardians.” 744.301(1). This makes it sound like the right to make binding decisions is determined solely by the status of “parental responsibility.” Not necessarily.
While the language used by the various courts that have addressed the issue is less than precise, it seems fairly clear that “[T]he parent having primary residential custody is the one who has standing to bring a suit on behalf of the child for an alleged injury to the child.” A.A. v. E.P., 559 So.2d 622, 623 (Fla. 3d DCA 1990) (citing Lusker v. Guardianship of Lusker, 434 So. 951 (Fla. 2nd DCA 1983); Mills v. Phillips, 407 So.2d 302 (Fla. 4th DCA 1981). In Gordon v. Colin, 997 So.2d 1136 (Fla. 4th DCA 2008, reh. denied 2009), a divorced father, who had shared parental responsibility of his son, filed suit against an individual for violating his son. However, because he did not have primary residential custody of the child, his complaint was dismissed due to a lack of standing and the lower court’s decision was upheld on appeal.
From the circumstances in Lusker and Mills, it would appear that the standard is not limited to personal injury cases. Left unanswered by the statute and case law is the question of where the authority resides when the parents remain married but are living apart. More certain is what happens when one parent dies. Per 744.301(1): “If one parent dies, the surviving parent remains the sole natural guardian even if he or she remarries.” Hence, unless there is a court order in effect granting custody to another individual, decision making authority would appear to shift automatically and immediately by operation of law to the surviving parent upon the death of the custodial parent.
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Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.
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