         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
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                          No. 1D16-4695
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CHRISTOPHER MORRIS,

    Appellant,

    v.

SEAN MORRIS,

    Appellee.
                  _____________________________

On appeal from the Circuit Court for Dixie County.
Jennifer J. Ellison, Judge.

                          April 30, 2018


M.K. THOMAS, J.

    The biological father appeals an order granting temporary
custody of the minor child to the step-father and denying his
Emergency Verified Motion for Pick-Up Order. He argues the trial
court applied the incorrect legal standard for the determination of
a contested petition for temporary custody by an extended family
member under to section 751.03, Florida Statutes (2016). Because
we agree, the order on appeal is reversed and the matter is
remanded to the trial court for further action consistent with this
opinion.

    Following the tragic and unexpected death of the biological
mother, the step-father filed a Petition for Ex Parte Emergency
Custody by Extended Family Member pursuant to section 751.03.
In response, the father filed an Emergency Verified Motion for
Child Pick-up Order and challenged the temporary custody
request of the step-father. At the time of the temporary custody
proceedings, the minor child was sixteen years of age and living in
Florida with her step-father and younger brother. The father lived
in Germany with his wife and the children born of that marriage.

     By way of history, the biological parents began the dissolution
of their marriage in 2002 when the minor child was approximately
eighteen months of age. The parents entered into a mediated
settlement agreement in 2002, which named the mother as the
primary residential parent. The dissolution of marriage was
finalized in 2007. Subsequently, the mother married the father’s
brother (the minor child’s “uncle” and following the marriage, also
her “step-father”). For the next fourteen years, the minor child
was raised by the mother and step-father and continuously resided
with them in Florida.

     The father has served in the military, mostly abroad, since the
minor child was four years of age. There were periods of years
where the father and the minor child had no in-person contact.
Visitation between the father and the minor child over the last
fourteen years has been sporadic, at best.

     The father now desires to exercise full parental responsibility
and relocate the minor child to Germany, where he is currently
stationed. The step-father petitioned for custody to allow the
minor child to remain in Florida and living in the family home
where she was raised. The minor child unequivocally expresses her
desire to remain living with the step-father and her younger
brother. Her plea is that custody be granted to her step-father so
she can remain “at home” with the step-father and her younger
brother, finish high school with her friends, and be near her older
sister who attends college in Florida.

     Following an in-depth temporary custody hearing at which
multiple witnesses testified, including the teenaged minor child,
the trial court granted temporary custody to the step-father; the
trial court explicitly based this determination on the best interest
of the child standard outlined in section 61.13, Florida Statutes.
Giving great weight to the minor child’s desires to remain in this
country with the step-father and her siblings and to complete her

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schooling, the trial court ultimately determined that granting
temporary custody to the step-father was in the minor child’s “best
interests.” The trial court further reasoned that it “would be
detrimental, cause mental, physical or emotional harm to uproot
[minor] from her home and send her to the other side of the world
when her schooling and her friends are so much a part of her life
and her world and what she relies on for stability in this difficult
time.”

     As the step-father is not a natural parent, the trial court’s use
of the best interest of the child standard to determine temporary
custody was error. Preference to the natural parents prevails
despite the fact that third persons are capable and willing to
provide better financial and social benefits to the child. See In re
Marriage of Matzen, 600 So. 2d 487 (Fla. 1st DCA 1992). This
parental preference rule, which is premised on the widely held
view that the family unit should be preserved, derives from the
seminal case of In re Guardianship of D.A. McW., wherein the
court stated that “[w]hen the custody dispute is between a natural
parent and a third party . . . the test must include consideration of
the right of a natural parent ‘to enjoy the custody, fellowship and
companionship of his offspring . . . This is a rule older than the
common law itself.’” 460 So. 2d 368, 370 (Fla. 1984) (quoting State
ex rel. Sparks v. Reeves, 97 So. 2d 18, 20 (Fla.1957)).

     This Court has explained that in custody disputes between a
natural parent and a third party, courts should give deference to
the natural parent pursuant to the common law parental
preference rule, “‘unless and until there is sufficient proof to
establish parental unfitness or substantial threat of significant
and demonstrable harm to the child.’” Corona v. Harris, 164 So. 3d
159, 160 (Fla. 1st DCA 2015) (quoting LiFleur v. Webster, 138 So.
3d 570, 574 (Fla. 3d DCA 2014)). Thus, the biological father should
have been awarded custody of the minor child unless the step-
father proved either: (1) the biological father was unfit; or (2)
remaining with the biological father would result in demonstrable
harm to the minor child.

    Here, the step-father filed for temporary custody under
chapter 751, Florida Statutes. Section 751.05(3)(b), governs a
temporary custody request by an extended family member over the

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objection of a natural parent and provides for the preference of a
natural parent to retain custody unless the natural parent is
proven to be unfit:

    If one of the minor child’s parents objects to:

    (b) The petition for temporary custody, the court shall
    grant the petition only upon a finding, by clear and
    convincing evidence, that the child’s parent or parents
    are unfit to provide for the care and control of the child.
    In determining that a parent is unfit, the court must
    find that the parent has abused, abandoned, or
    neglected the child, as defined in Chapter 39.

See also Landinguin v. Carneal, 837 So. 2d 525, 527 (Fla. 4th DCA
2003).

    Here, the trial court found the biological father fit. We agree
with the trial court’s finding, as there is no legally sufficient
evidence in the record to support allegations of abuse,
abandonment, or neglect.

     In addition to fitness, the common law rule of parental
preference provides that “where the custody dispute is between the
parents and a third person, the rights of the parents are
paramount unless there is a showing . . . that, for some substantial
reason, custody in either or both of the parents would be
detrimental to the child’s welfare.” Hammond v. Howard, 828 So.
2d 476, 478 (Fla. 5th DCA 2002) (quoting Daugharty v. Daugharty,
571 So. 2d 85, 86 (Fla. 5th DCA 1990)). “‘[D]etriment refers to
circumstances that produce or are likely to produce lasting mental,
physical or emotional harm.’” Murphy v. Markham-Crawford, 665
So. 2d 1093, 1094 (Fla. 1st DCA 1995) (quoting In re Marriage of
Matzen, 600 So. 2d at 490).

     This Court has addressed detriment in cases requiring a
child’s relocation, finding “‘the detriment which must be
established . . . before a natural parent’s request for custody may
be denied involves something much more serious than the
discomfort normally experienced by a child when moved from a
familiar environment into one engulfed by the fear and

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uncertainty associated with the unknown . . .’” Seilkop v. Barker,
148 So. 3d 865, 868 (Fla. 1st DCA 2014) (quoting Murphy, 665 So.
2d at 1094). Rather, “[i]t contemplates a longer term adverse effect
that transcends the normal adjustment period in such cases.”
Filter v. Bennett, 554 So. 2d 1184, 1185 (Fla. 2d DCA 1989).

     Here, the trial court found the minor child’s relocation to
Germany to live with her biological father would be detrimental.
However, we are unable on the record before us to determine if the
trial court properly analyzed detriment in the context of relocation
of a child. Because the trial court applied an erroneous legal
standard in granting the step-father’s petition for temporary
custody and its findings are incomplete with regard to detriment,
we remand.

    REVERSED and REMANDED with directions.

ROBERTS and WINOKUR, JJ., concur.
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    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Kyle J. Benda of the Law Office of Knellinger, Jacobson &
Associates, Gainesville, for Appellant.

M. Michael O'Steen of M. Michael O'Steen, P.A., Cross City, for
Appellee.




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