Dispute over time-sharing hinges on best interest of the child standard

When does the “best interest of the child” standard not apply?

Child Custody - Child arms up on a hillWhen it’s not the biological child of the person seeking custody. That was the ruling from the First District Court of Appeal in a case involving the mother of two young children living with her ex-husband.

Lisa Marie Corona appealed a trial court judge’s ruling to grant majority time-sharing of her two children to David Key Harris, from whom she had separated in November 2012. She also appealed the lower court’s rulings relating to the calculation of child support and its decision to grant her ex all tax exemptions for the children.

The case related to a paternity action Harris brought against Corona in which he asked for majority time-sharing of both of her minor children, alleging they had been living with him since November 2012 with limited contact or involvement from their mother.

While Corona denied that Harris had fathered the older child, she did admit that he had been caring for and had exercised primary responsibility for both of her children. The trial court awarded majority time-sharing of both children to Harris reasoning it was in their best interest.

The appellate court noted that while the “best interests of the child” standard was appropriate in the case of the younger child, to whom Harris was the biological father, the trial court erred when it came to the older child because she was not his biological child.

The appellate court pointed out that instead, the trial court should have followed a two-step test, which first requires the court to determine if remaining with the natural parent would be a detriment to the child. If so, then the court could consider the best interest of the child standard. The appellate court pointed to a precedent Florida Supreme Court ruling ( Richardson v. Richardson ), which involved a dispute between a natural parent and a paternal grandparent over the custody of a minor child.

In that case, the state high court found: “When a custody dispute is between two parents, where both are fit and have equal rights to custody, the test involves only the determination of the best interests of the child.” However, it noted that in cases involving a third party, custody should be denied to the natural parent only when such an award is detrimental to the welfare of the child.

The appellate court found that because the trial court “applied an erroneous legal standard” when it awarded majority time-sharing of the older child to Harris without finding that her natural mother was unfit, or that a time-sharing change would prove detrimental to the child, it reversed the lower court’s paternity order regarding only the older child and sent the case back for further proceedings. In addition, the appellate court ruled that in light of its decision the questions of child support and tax exemptions also must be reviewed and readdressed by the lower court

Lori Barkus is a Florida Supreme Court Certified Circuit Civil and Family Law mediator and guardian ad litem. She handles matters relating to divorce, custody, child support, paternity, collaborative divorce, adoption, parental rights, and family law and civil mediation

Ms. Barkus is a cum laude graduate of the University of Miami School of Law. She is admitted to practice in Florida, Georgia and the District of Columbia, as well as in the Southern and Middle Districts of Florida and the Eleventh Judicial Circuit Court of Appeals. She is also a member of Leading Women for Shared Parenting.

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