                                        IN THE DISTRICT COURT OF APPEAL
                                        FIRST DISTRICT, STATE OF FLORIDA

LISA MARIE CORONA,                      NOT FINAL UNTIL TIME EXPIRES TO
                                        FILE MOTION FOR REHEARING AND
      Appellant,                        DISPOSITION THEREOF IF FILED

v.                                      CASE NO. 1D14-4931

DAVID KEY HARRIS,

      Appellee.

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Opinion filed May 15, 2015.

An appeal from the Circuit Court for Nassau County.
Robert M. Foster, Judge.

Rachael Z. Ardanuy of Finnell, McGuiness, Nezami & Andux, P.A., Jacksonville,
for Appellant.

Amanda Meyer, Joy N. Owenby, Michelle Broyles, and Sam Frazer of Owenby
Law, LLC, Jacksonville, for Appellee.




WOLF, J.

      Appellant, the mother, challenges the trial court’s final judgment of paternity

and custody order regarding her two children. She alleges that the trial court made

three errors that merit discussion: (1) the trial court erred in granting majority time-

sharing of the older child to appellee, a non-relative; (2) the trial court erred in
calculating child support; and (3) the trial court erred in granting appellee all tax

exemptions every year for the children. We reverse as to Issue 1 and remand for

the trial court to readdress the time-sharing issue based on the appropriate legal

standard. Based upon its determination, the trial court shall readdress child support

and allocation of the tax exemptions.

      Appellee brought a paternity action in which he requested majority time-

sharing of both of the minor children, alleging that both children had been living

with him since November 2012, when the parties separated, with limited contact

and involvement from appellant.

      In her answer to the petition for determination of paternity, appellant denied

that appellee was the father of the older child. However, she admitted that both

children had resided with appellee since November 2012, and that appellee, at the

time of the petition, had been exercising primary responsibility for both children.

      In its order, the trial court awarded majority time-sharing of both the older

and the younger children to appellee, reasoning that it was in the best interests of

the children to do so. The “best interests of the child” standard was appropriate to

determine the time-sharing of the younger child because the parties are his

biological mother and father. See LiFleur v. Webster, 138 So. 3d 570, 574 (Fla. 3d

DCA 2014). However, because appellee is not the biological father of the older

child, the use of only the “best interests of the child” standard to determine time-

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sharing of the older child was error. Rather, the court should have utilized the two-

step test outlined in Richardson v. Richardson, 766 So. 2d 1036 (Fla. 2000).

        In Richardson, the Supreme Court of Florida held that in custody disputes

between a natural parent and a third party, the trial court could not rely solely on

the “best interests of the child” standard. 776 So. 2d at 1039. Rather, before

awarding custody to a third party, the court would have to follow a two-step test:

first, the court would determine whether remaining with the natural parent would

be a detriment to the child; if so, the court could consider the best interests of the

child. Id. (citing In re Guardianship of D.A. McW, 460 So. 2d 368, 369-70 (Fla.

1984)     (finding   section   67.13(7),   Florida   Statutes   (1997)   was    facially

unconstitutional “because it equates grandparents with natural parents and permits

courts to determine custody disputes utilizing solely the ‘best interest of the child’

standard without first determining detriment to the child”)).

        Similarly, in LiFleur, 138 So. 3d at 570, the Third District held that the trial

court’s denial of the natural mother’s emergency motion to terminate temporary

custody to the child’s stepmother was error because the court relied solely on the

“best interests of the child” standard and misallocated the burden of proof by

requiring the natural mother to show that she was a fit parent rather than by

requiring the opposing party to prove that she was an unfit parent. The court cited

to Richardson when noting that “a trial court cannot engage in a ‘best interests of

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the child’ analysis unless and until there is sufficient proof to establish parental

unfitness or substantial threat of significant and demonstrable harm to the child.”

Id. at 574.

      Because the trial court in the current case applied an erroneous legal

standard in awarding appellee majority time-sharing of the older child when

appellee is a non-relative without finding either that her natural mother was unfit or

that a time-sharing change would be detrimental to the child, we REVERSE the

paternity order regarding the older child and REMAND for reconsideration under

the proper standard.* See Slover v. Meyer, 80 So. 3d 453, 455 (Fla. 2d DCA 2012).

ROWE and SWANSON, JJ., CONCUR.




*
  Because appellee is actually the biological father of the second child, and the
“best interests of the child” standard is sufficient to support an award of majority
time-sharing to a biological parent, we do not disturb this portion of the judgment.
See LiFleur v. Webster, 138 So. 3d 570, 574 (Fla. 3d DCA 2014).
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