Kazmierazak v. Query

• Decision Date: 23 June 1999
• Docket Number: No. 98-2854.,98-2854.
• Citation: 736 So.2d 106
• Parties: Penny KAZMIERAZAK, Appellant, v. Pamela S. QUERY, Appellee.
• Court: Florida District Court of Appeals

736 So.2d 106

Penny KAZMIERAZAK, Appellant, v. Pamela S. QUERY, Appellee.

No. 98-2854.

District Court of Appeal of Florida, Fourth District.

June 23, 1999.

Stephen R. Scarborough of Lambda Legal Defense and Education Fund, Inc., Atlanta, Georgia, and Elizabeth Stewart Brooker, Vero Beach, for appellant.

Margaret M. Anderson of Anderson & Winfield, P.A., Vero Beach, for appellee.

GUNTHER, Judge.

Appellant seeks reversal of the trial court's orders dismissing her petition for custody and denying her motion for temporary visitation of appellee's biological child. The trial court denied the requested relief on the grounds that appellant failed to state a cause of action and lacked standing to seek custody or visitation. We affirm.

Appellant argues that she is entitled to an evidentiary hearing to establish that she is a "psychological parent" of appellee's biological child. As a psychological parent, she contends that she has parental status equal to the appellee, the biological mother, which gives her standing to seek custody or visitation of appellee's child over appellee's objection. In her petition the appellant alleges that the appellee "may not be a fit and proper person to retain custody of the minor," and "it is in the best interests of the minor" that custody be granted to appellant. Appellant, however, does not seek relief under any statutory scheme nor does she allege that the child is suffering any demonstrable harm or that it will be detrimental to the child to deny her custody or visitation. Moreover, she does not contend that a psychological parent has any rights recognized at common law.

Initially, appellant's petition confronts a procedural hurdle in that she is not seeking relief pursuant to any statute. Under Florida law, to invoke the jurisdiction of the court, a non-parent may petition for custody or visitation of another's child under the statutory authority of Chapter 39, 61, or 63. See Russo v. Burgos, 675 So.2d 216, 217 (Fla. 4th DCA 1996)

; In re C.M. and F.M., 601 So.2d 1236 (Fla. 4th DCA 1992); MMMA v. Jonely, 677 So.2d 343, 346 (Fla. 5th DCA 1996). Chapter 39 allows a non-parent to file a petition for dependency. See § 39.404(1). Chapter 61 allows a grandparent, in certain situations, to obtain custody or visitation during a divorce proceeding. See § 61.13(2)(b)2.c., (7). Further, under chapter 63, a nonparent may petition for adoption without the consent of the biological parent upon proof the biological parent has deserted or abandoned the child. See § 63.072(1). Although, in the present case, the appellant's petition was not filed under any of the available statutory schemes, the appellant argues that, as a psychological parent, her status is equivalent to that of a biological parent, thereby allowing her to petition for custody of the child outside of an existing statutory scheme.

As a non-adoptive or non-biological parent seeking custody from a biological parent, the appellant would also appear to be faced with Florida's constitutional right of privacy. See Art. I, § 23, Fla. Const.; Von Eiff v. Azicri, 720 So.2d 510 (Fla. 1998). Our supreme court recently addressed the constitutional right to privacy as it applies to child rearing in Von Eiff wherein the issue was whether the statutory provision giving grandparents visitation after the death of a biological parent was constitutional. See Von Eiff, 720 So.2d at 510

.

At common law, grandparents had no legal right to visit their grandchildren if the parent opposed visitation. See id. at 511. The Florida legislature, however, has enacted grandparent visitation legislation, creating statutory visitation rights for grandparents. See id. In Von Eiff, the supreme court considered the constitutionality of the grandparent's visitation rights, under section 752.01(1)(a), Florida Statutes (1997), which provides that the court shall give visitation to grandparents upon the death of a biological parent "when it is in the best interest of the minor child." See id. Concluding the statute was unconstitutional, the court reasoned that to justify state intervention, either through the legislature or the courts, into a parent's fundamental and constitutionally protected right of privacy, there must be a threshold showing of demonstrable harm to the child. See Von Eiff, 720 So.2d at 514-15

. Following this threshold finding, a "best interests of the child" analysis should then be applied. See id.

In an attempt to circumvent the appellee's right of privacy, appellant argues that she falls within the sphere of those protected by Florida's right to privacy. She makes this argument on the theory that as a psychological parent she is the equivalent of a biological parent and thus, has the same protected privacy rights as the appellee.

In essence, appellant's sole argument is that once she establishes that she is a psychological parent to appellee's biological child, she is on equal footing with the appellee and no longer confronts the aforementioned impediments to seeking custody or visitation with the child. Thus, the issue in this case is whether, under current Florida law, a psychological parent has the same rights as a biological parent.

This court has previously recognized the concept of a psychological parent. In support of her position, appellant relies on Wills v. Wills, 399 So.2d 1130 (Fla. 4th DCA 1981), wherein this court affirmed the trial court's order granting temporary visitation to a step-mother during a dissolution action. See id. at 1131. In awarding visitation, the trial court had determined that the step-mother was the psychological mother of the child. See id. Acknowledging contrary authority and without any supporting authority, this court affirmed the lower court and provided,

It seems to us that if an adequate record can be made demonstrating that it is in the child's best interest that such visitation be authorized the judge's discretion in the matter is sufficiently broad to allow him to authorize visitation with a non-parent. Certainly this type of visitation, contrary to the wishes of the custodial parent, should be awarded with great circumspection. But if the welfare of the child is promoted by such visitation and there is no other substantial interest adversely affected the trial judge should be allowed that latitude.

Id.

In the Wills opinion, this court's reasoning turns on the concept of the best interests of the child without explicitly resolving the question of the standing of the psychological parent to seek visitation. Significantly, no mention is made of the father's fundamental and constitutionally protected right of privacy.

Simmons v. Pinkey, 587 So.2d 522 (Fla. 4th DCA 1991), is cited by the appellant as evidence that this court has vigilantly protected the welfare of children of psychological parents. In Simmons, the minor child resided with a foster mother for thirteen years while the biological father was in prison for killing the biological mother. See id. at 523. While this court upheld the denial of the biological father's petition for custody of his minor daughter as well as the award of custody to the foster mother with reasonable visitation granted the father, it did so upon the trial court's application of the principle of the best interests of the child. In Simmons, this court adopted the trial court's decision that:

The standard which this Court applies is that standard enunciated in the recent Supreme Court case of In Re Guardianship of D.A. McW., 460 So.2d 368 (Fla. 1984). In that case the Supreme Court opined the fundamental concept roots in early common law that a natural parent has the right in the preservation of the natural family unit to a child born of natural parents, except when such custody should be determined to be detrimental to the welfare of a natural child. Also see In Re: Guardianship of D.A. Mc W., 429 So.2d 699 (Fla. 4th DCA 1983)

.

Id. at 524.

By adopting this language, the Simmons court recognized the biological parent's superior right except when custody would be detrimental to the child. Thus, in affirming the trial court's ruling, this court did so on the basis that awarding custody to the biological father would have been detrimental to the minor and not on the basis that the foster mother had the same status as the biological father. See id. at 524. Also, Simmons, like Wills, is resolved without addressing the father's privacy rights or expressly addressing the issue of the foster mother's standing.

Also relied upon by the appellant is Heffernan v. Goldman, 256 So.2d 522 (Fla. 4th DCA 1971), wherein custody was awarded to a step-mother despite the biological mother's petition for custody. See id. at 523. Affirming the award of the trial court, this court provided that "[i]t is not contrary to law to award custody of minor children to one other than the natural parent when to do so would be for the best interest and welfare of the children." Id. However, similar to Wills and Simmons, the award of custody or visitation in this case was founded upon the "best interests of the child" rather than the status of the non-parent. Thus, the biological parent's right to privacy, as in the other cases cited by appellant, goes unresolved in our court's Heffernan opinion.

Although the above mentioned cases from this district have upheld custody and visitation awards to non-adoptive or nonbiological parents in the past, their holdings must be reconsidered in light of recent precedent. Since these cases were decided, our supreme court, citing the fundamental and constitutional right of privacy, has unequivocally reaffirmed adoptive or biological parents' right to make decisions about their children's welfare without interference by third parties. See Von Eiff, 720 So.2d at 514-15

. Von Eiff stands for the proposition that the state cannot intervene into a parent's fundamental or constitutionally protected right of privacy, either via the judicial system or legislation...