Guardianship of D.A. McW., In re

• Decision Date: 06 December 1984
• Docket Number: No. 63712,63712
• Citation: 460 So.2d 368
• Parties: In re GUARDIANSHIP OF D.A.McW., A Minor. Emma NERO, Petitioner, v. Albert McWHITE, Respondent.
• Court: Florida Supreme Court

Page 368

460 So.2d 368

In re GUARDIANSHIP OF D.A.McW., A Minor.

Emma NERO, Petitioner, v. Albert McWHITE, Respondent.

No. 63712.

Supreme Court of Florida.

Dec. 6, 1984.

Frank E. Maloney, Jr., Macclenny, for petitioner.

Mitchell B. Luber, Fort Lauderdale, for respondent.

OVERTON, Justice.

This is a petition to review a decision of the Fourth District Court of Appeal reported as In re Guardianship of D.A.McW., 429 So.2d 699 (Fla. 4th DCA 1983), in which the district court held that the custody rights of a natural father of a child born out of wedlock must prevail over the rights of the child's maternal grandmother when it is determined that the father is a fit person for custody, unless it is shown that such custody will be detrimental to the child's welfare. We find conflict with Scott v. Singleton, 378 So.2d 885 (Fla. 1st DCA 1979), cert. denied, 388 So.2d 1118 (Fla.1980). We have jurisdiction, article V, section 3(b)(3), Florida Constitution, and we approve the decision of the district court.

The record reflects that the child, D.A.McW., was born to the respondent, Albert McWhite, and Vicky Nero, daughter of the petitioner, Emma Nero. Although McWhite and Vicky were never married, they had maintained a longstanding relationship and McWhite is represented to be the child's father on the child's birth certificate, in a hospital acknowledgment form filed at birth, on the child's baptismal certificate, in the records of the Florida Department of Health and Rehabilitative Services, and in the records of the United States Social Security Administration. When Vicky died in an automobile accident, both McWhite and Emma Nero, the maternal grandmother, petitioned for appointment as custodian and guardian of the child.

At trial, McWhite testified that he and Vicky had planned to marry and that he had cared for the child regularly since the child was three months old. Specifically, McWhite claimed that he had taken care of the child on weekdays while the mother was attending college. Further, McWhite testified that he had provided for some of the child's medical needs, had provided some food and clothing, and had made payments to the Department of Health and Rehabilitative Services for the child's benefit. Emma Nero testified that the child had lived with her in her house since birth and explained how she had cared for the child. The trial court determined that McWhite was fit to have custody, but concluded that, although it recognized

the putative father's interest and legal rights to claim custody and guardianship pursuant to the United States Supreme Court case of Stanley v. Illinois, 405 U.S. 645 [92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) ] ... the best interest of the minor child will be served by giving custody and guardianship of person and property to the maternal grandmother.

The trial court reasoned that "the maturity of the grandmother must be taken into consideration in addition to the past care and extreme interest that the grandmother has placed in this child." In addition, the court found that "the grandmother, in conjunction with the deceased natural mother, has raised this child since birth and that the child has, in fact, resided in the Nero home for his entire life."

On appeal, the district court reversed the award of custody and, in a thorough opinion, noted the personal involvement of the natural father with the child and emphasized the custody rights of a natural parent as opposed to the rights of a third person. The district court correctly articulated the test to be applied in a custody dispute between two natural parents and distinguished it from the test applicable to a custody dispute between a natural parent and a third party. When a custody dispute is between two parents, where...