Summary
noting section 61.13, Florida Statutes, applies only to parents’ rights and " ‘does not extend to nonparents.’ " (quoting Russell, 178 So. 3d at 59.)
Summary of this case from Malkin v. PlaOpinion
Case No. 2D18-4812
01-31-2020
Sherran R. LANE-HEPBURN n/k/a Sherran Auld, Appellant, v. Justin Warner HEPBURN, Appellee.
Anastasia C. Jaster of Holistic Family Law, PLLC, St. Petersburg, for Appellant. Justin Hepburn, pro se.
Anastasia C. Jaster of Holistic Family Law, PLLC, St. Petersburg, for Appellant.
Justin Hepburn, pro se.
BLACK, Judge.
Sherran Lane-Hepburn, n/k/a Sherran Auld, challenges the trial court's order denying her motion to vacate the default final judgment of dissolution which included a parenting plan determining parental responsibility and timesharing for the parties' two children in addition to the child of only Ms. Auld. She also challenges the court's ex-parte order for pick-up of her child. We reverse both orders.
Ms. Auld and Justin Hepburn were married in November 2007. At the time of their marriage, Ms. Auld had one minor child whose paternity had been adjudicated in March 2006. Mr. Hepburn is not the biological father of the child. Following the marriage of Ms. Auld and Mr. Hepburn, the child's last name was legally changed to Hepburn. The parties had two children during the marriage.
In May 2016, Mr. Hepburn filed a petition for dissolution of marriage. A default final judgment of dissolution was rendered in October 2016. The final judgment incorporated and attached the parenting plan supplied by Mr. Hepburn in his petition for dissolution. That parenting plan specified that Mr. Hepburn was to have all timesharing with the caveat that all three children would spend time with Ms. Auld "when Father agrees" and that the parties would have shared parental responsibilities with Mr. Hepburn making the ultimate decisions when disputes arose.
Ms. Auld subsequently filed a petition to set aside the dissolution judgment and to modify the parenting plan. In that pro se petition, Ms. Auld alleged that she had not been served with the petition for dissolution, that Mr. Hepburn is not the legal father of the oldest child, and that the best interests of the other children were not considered prior to entry of the parenting plan. Ms. Auld attached a copy of the oldest child's birth certificate and the paternity judgment to her petition.
The petition was never ruled upon, and in 2018 Ms. Auld's counsel filed an amended verified motion to vacate the final judgment and parenting plan. The amended motion expounded upon the assertions raised in Ms. Auld's initial petition. Following a hearing, the amended motion was denied. Shortly thereafter, and following Ms. Auld's decision not to return the oldest child to the care of Mr. Hepburn following a visit with Ms. Auld, Mr. Hepburn filed an emergency motion for child pick-up order. That motion was granted.
"[I]t is well-settled in Florida that where, as here, a divorcing couple has [minor children], a court cannot enter a default final judgment without allowing the defaulting parent an opportunity to present evidence on issues related to the child[ren.]" See Shewmaker v. Shewmaker, 283 So.3d 894, 895 (Fla. 2d DCA 2019). "[T]he 'best interest of the child' standard precludes a determination of child custody based on a parent's default." Id. (quoting Armstrong v. Panzarino, 812 So. 2d 512, 514 (Fla. 4th DCA 2002) ; see also Barnett v. Barnett, 718 So. 2d 302, 304 (Fla. 2d DCA 1998) ("It has long been the rule in Florida that child custody should be decided based on the best interests of the children, not based on the default of one of the parents."). Additionally,
Florida's rules regarding visitation and timesharing are governed by section 61.13, Florida Statutes (2014). And "[b]y its explicit provisions," section 61.13 applies only to parents' visitation rights and does not extend to nonparents. Wakeman v. Dixon, 921 So. 2d 669, 673 (Fla. 1st DCA 2006). Several cases have applied this statute to hold that nonparents are not entitled to visitation. See, e.g., O'Dell v. O'Dell, 629 So. 2d 891, 891 (Fla. 2d DCA 1993) ; Wakeman, 921 So. 2d at 673 ; Kazmierazak v. Query, 736 So. 2d 106, 109 (Fla. 4th DCA 1999) ; Music v. Rachford, 654 So. 2d 1234, 1235 (Fla. 1st DCA 1995) ; Meeks v. Garner, 598 So. 2d 261, 262 (Fla. 1st DCA 1992).
Russell v. Pasik, 178 So. 3d 55, 59 (Fla. 2d DCA 2015) (alteration in original) (emphasis added). The law does not empower the courts "to award child visitation against the will of the birth, biological, or legal parent" even where the courts find "that visitation [i]s in the best interest of the child because a non-parent qualifie[s] as a ‘psychological parent.’ " De Los Milagros Castellat v. Pereira, 225 So. 3d 368, 370-71 (Fla. 3d DCA 2017) (Logue, J., concurring). Simply stated, "Florida law makes no provision for visitation between unrelated parties." L.D. v. Fla. Dep't of Children & Families, 24 So. 3d 754, 756 (Fla. 3d DCA 2009). "[T]hose who claim parentage on some basis other than biology or legal status do not have the same rights, including the right to visitation, as the biological or legal parents." Russell, 178 So. 3d at 59.
Mr. Hepburn is not the biological father of the oldest child; and, as he concedes, he is not the child's adoptive father. Thus, although Mr. Hepburn presents a sympathetic case given that he has been the father figure in the oldest child's life and that the oldest child has been raised with his half siblings, the record before us establishes that Mr. Hepburn has no right to timesharing with the oldest child.
It was error to deny the motion to vacate the final judgment of dissolution; the final judgment of dissolution as it relates to timesharing and parental responsibility cannot stand. And although the issue of the child pick-up order is complicated by the language of the Uniform Child Custody Jurisdiction and Enforcement Act, had the court correctly ruled upon the motion to vacate there would have been no basis for the entry of the child pick-up order. We therefore reverse the order denying the motion to vacate the final judgment of dissolution and the child pick-up order. On remand, the best interests of the parties' two children must be considered at an evidentiary hearing before a different judge. The oldest child must be excluded from any future orders unless sufficient evidence establishing Mr. Hepburn's status as the legal father of the child is presented.
Reversed and remanded.
KELLY and VILLANTI, JJ., Concur.