C.G. v. J.R. & J.R.

• Decision Date: 31 January 2014
• Docket Number: No. 2D12–5089.,2D12–5089.
• Citation: 130 So.3d 776
• Parties: C.G., Appellant, v. J.R. and J.R., Appellees.
• Court: Florida District Court of Appeals

130 So.3d 776

C.G., Appellant,

v.J.R. and J.R., Appellees.

No. 2D12–5089.

District Court of Appeal of Florida, Second District.

Jan. 31, 2014.

Jean Marie Henne of Jean M. Henne, P.A., Winter Haven, and Robert B. Peddy, Jr., of Law Offices of Peddy, P.A., Lakeland, for Appellant.

Brandon J. Rafool of Brandon J. Rafool, L.L.C., Winter Haven, for Appellee J.R.

No appearance for second Appellee J.R.

MORRIS, Judge.

C.G. appeals a final judgment entered against him in his paternity action. C.G. is the undisputed biological father of H.G.-R. However, H.G.-R.'s biological mother was married to J.R. at the time of H.G.-R.'s birth, thereby establishing J.R. as H.G.-R.'s legal father. After C.G. filed a verified complaint to establish paternity, he and the biological mother entered into a paternity and timesharing agreement, which was then approved by the trial court. That agreement provided both C.G. and J.R. with visitation rights, and J.R. signed the agreement though he was not listed as a party to it. In a subsequent order vacating the agreement, the trial court found that the agreement was unenforceable because it created dual paternity which is not recognized under Florida law. And in the trial court's final judgment denying the paternity action, the trial court determined that it was in H.G.-R.'s best interests to have J.R. remain as her legal father. We affirm as explained herein.

I. Background

J.R. and the biological mother were married in 1999 and had three children prior to H.G.-R.'s birth. C.G. was also married and had two prior children with his wife. C.G. and J.R. were business partners. In 2005, the biological mother and C.G. began an extramarital affair and the biological mother became pregnant with H.G.-R.¹ Upon learning she was pregnant, the biological mother immediately told C.G. that the child may be his child. However, the biological mother did not immediately inform J.R. of the possible paternity issue and, therefore, J.R. assumed H.G.-R. was his biological child.

As soon as H.G.-R. was born, the biological mother permitted C.G. to have frequent visitation with the child. When the child was seven months old, the biological mother finally informed J.R. that C.G. might be the child's biological father.

In May 2007, J.R. and the biological mother stopped permitting visitation between C.G. and H.G.-R. C.G. then filed a paternity action. C.G. did not have visitation with the child between February 1, 2008, and January 31, 2009.

In January 2009, the biological mother and J.R. separated. That same month, C.G. and the biological mother entered into a paternity, support, and other related relief agreement, wherein it was acknowledged that C.G. was the “legal, natural[,] and biological father” and that he would have “liberal and reasonable visitation” with the child. The agreement required C.G. to pay child support and half of all insurance deductibles and medical expenses not covered by the insurance policy. Although the agreement specified that it was only between C.G. and the biological mother, it contained a stipulation that: “[t]his agreement in no way removes any parental rights of [J.R.] as to custody or visitation with [H.G.-R.], according[ ] to Florida State Law ... or further order of the Court.” J.R. signed the agreement after C.G. and the biological mother. The trial court entered a final order acknowledging the agreement in February 2009, although the order did not mention the clause pertaining to J.R.'s parental rights.

A dispute arose after the biological mother was arrested for drug possession and C.G. refused to return the child after lawful visitation, citing concerns about drug usage by the biological mother and J.R. Eventually, H.G.-R. was returned to the biological mother pursuant to an emergency pick up order. J.R. then filed a verified motion to set aside and/or vacate the January 2009 agreement and the February 2009 final judgment addressing that agreement.

C.G. and the biological mother subsequently entered into a “post paternity custodial residential parent, time sharing [sic] plan for minor child, support [,] and other related relief agreement.” In that agreement, the biological mother acknowledged C.G.'s parental rights while at the same time releasing J.R. “from any financial responsibilities of [H.G.-R.].” The agreement provided for equal timesharing between C.G. and the biological mother, for child support and daycare expenses to be paid by C.G., and for C.G. to pay half of the insurance deductibles and medical expenses not covered by insurance. There was no mention of J.R.'s parental rights in this agreement, and J.R. did not sign it.

The biological mother, her boyfriend, and H.G.-R. then moved in with C.G. and his family. The biological mother filed for divorce from J.R. in June 2009, but the action was dismissed for lack of prosecution in October 2010. In the interim, the trial court adopted the rotating custody agreement entered into by C.G. and the biological mother. The trial court agreed to accept the new agreement on a temporary basis and permitted J.R. to pursue his then-pending motion to set aside and/or vacate the earlier agreement and final judgment.

In October 2009, the trial court entered an order vacating the final judgment on the original parenting, support, and timesharing agreement and removing H.G.-R. from C.G.'s care. The basis for the trial court's decision was that the January 2009 agreement and final judgment thereon created a “legal fiction of dual paternity” that was contrary to state law and public policy, thereby rendering it unenforceable. Subsequent to entry of the October 2009 order, the biological mother placed H.G.-R. with J.R.² C.G. has not seen the child since October 2009.

In July 2011, C.G. filed a verified emergency motion for timesharing, modification of timesharing, and sole and/or shared custodial responsibility of H.G.-R. on the basis that DNA tests revealed that he was the child's biological father and that he had been involved in the child's life. He also noted that the biological mother was unstable and a drug user. The motion was denied, but the matter was set for trial.

In February 2012, a guardian ad litem (GAL) was appointed in the proceeding. ³ In March 2012, she presented her written report to the court. In evaluating what was in the best interest of H.G.-R., the GAL primarily considered C.G. and J.R. as placements because the biological mother had not had any contact with the child for over two years. The GAL determined that due to the biological mother's instability and drug use, she was not a suitable placement for the child, and between the two fathers, she concluded it was in the child's best interest to be placed with J.R. In reaching this conclusion, the GAL faulted C.G. for allowing the biological mother to reside in his home with her then-boyfriend while she continued to abuse drugs and for using the media and street signs to publicize the custody issue. The GAL concluded that C.G. entered into the parenting, support, and timesharing agreement in order to gain an advantage in the custody battle. Regarding the fathers' moral fitness, the GAL noted C.G.'s decision to use public forums to convey information about the issue and his interference with the biological mother's and J.R.'s efforts to reconcile their marriage. The GAL also expressed concern that C.G. had been untruthful in regard to an alleged incident of medical neglect of the child as well as making false accusations regarding J.R.'s purported attempt to purchase drugs.

The GAL believed that J.R. was better equipped to facilitate timesharing based on C.G.'s unilateral decision to modify the timesharing agreement (i.e., when he refused to return H.G.-R. after visitation); the GAL noted that J.R. had been more cooperative with the timesharing schedule. The GAL also found that H.G.-R. was doing well in her placement with J.R. and that the child considered J.R. to be her father. H.G.-R. was closely bonded with her half-siblings, and the half-siblings were protective of her. On that basis, the GAL believed it would be detrimental to separate H.G.-R. from her half-siblings. The GAL believed that the home, school, and community record favored placement with J.R., and she credited J.R. for his influence in the child's life. ⁴ The GAL also expressed concern that the child's placement with C.G. could be challenged in court as not permissible under Florida law. The GAL ultimately concluded that it was in H.G.-R.'s best interest to preserve the “presumption of legitimacy” that arose when she was born during an intact marriage.

Ultimately, the trial court entered a final judgment against C.G. in his paternity action. In so ruling, the trial court largely agreed with the GAL's conclusions, noting especially H.G.-R.'s relationship with her half-siblings and C.G.'s use of public forums to publicize the matter. The trial court also found that despite C.G.'s status as the biological father, “[h]e has no significant relationship with [H.G.-R.].” The trial court found that many of the child custody factors set out in section 61.13(3), Florida Statutes (2012), favored placement with J.R. and that none favored placement with C.G. The trial court ruled that it was in H.G.-R.'s best interest for J.R. to “remain as her legitimate and legal father,” and the trial court ordered that the child's birth certificate reflect that J.R. was the father.

II. Analysis

C.G. appeals the October 2009 order that vacated the earlier order approving the original paternity and timesharing agreement; he also appeals the final judgment denying his paternity complaint. Initially, we reject C.G.'s argument that there was insufficient evidence to support the trial court's determination that it was in H.G.-R.'s best interest for J.R. to remain recognized as her legitimate and legal father. Instead, we conclude that based on the factors set forth in section 61.13(3), the trial court's...