Kent v. Burdick

• Decision Date: 17 December 1991
• Docket Number: No. 91-1944,91-1944
• Citation: Kent v. Burdick, 591 So.2d 994 (Fla. App. 1991)
• Parties: Thomas Allen KENT, Appellant, v. Jayne Bumpers BURDICK and Laurence Burdick, Appellees. 591 So.2d 994, 17 Fla. L. Week. D36
• Court: Florida District Court of Appeals

Page 994

591 So.2d 994

Thomas Allen KENT, Appellant, v.Jayne Bumpers BURDICK and Laurence Burdick, Appellees.

No. 91-1944.

591 So.2d 994, 17 Fla. L. Week. D36

District Court of Appeal of Florida First District.

Dec. 17, 1991.

Lacy Mahon, Jr. of Mahon & Mahon, P.A., Jacksonville, for appellant.

Frank M. Scruby, Orange Park, for appellees.

KAHN, Judge.

Thomas Allen Kent appeals a final order granting visitation with his minor daughter.We reverse the trial court's order granting visitation because the restrictions in the order deny appellant of his due process right to maintain a parental relationship with his child.

The natural mother, Jayne Burdick, and her husband, Larry Burdick, initially were married in 1980 and divorced in 1986.Shortly thereafter, Mrs. Burdick and Mr. Thomas Allen Kent lived together for a few months, during which time Mrs. Burdick became pregnant with A.J.B.However, by December 1986, she had terminated her relationship with Mr. Kent and had remarried Mr. Burdick, with Mr. Burdick being fully aware that she was pregnant with Mr. Kent's child.Within 45 days of the child's birth, appellant filed a complaint in Duval County to determine paternity.The complaint was dismissed upon the natural mother's plea of privilege.

The mother and her husband believe appellant should have no parental rights and have avoided any contact with appellant.They even ignored the recommendation of their own psychologist that Mr. Kent be allowed to see his daughter.The natural mother stated that she would not be agreeable to visitation in any shape, form or fashion.Her husband likewise testified that he would not allow even 10 minutes a month visitation.

Appellant filed another complaint in Clay County to establish paternity and to obtain shared parental responsibility, visitation, and a change of the child's surname to Kent.As a counterclaim to appellant's suit, the Burdicks filed for stepparent adoption which the court awarded without the biological father's consent.

In Mr. Kent's first appeal, In the Interest of A.J.B., 548 So.2d 906(Fla. 1st DCA1989), this court reversed the lower court's order of adoption, finding that the trial court erred in determining that the natural father's consent was not required under Sec. 63.062(1)(b), Florida Statutes, for stepparent adoption in this case.

On remand, the trial court denied visitation based on its previously reversed order granting adoption.In Kent v. Burdick, 573 So.2d 61(Fla. 1st DCA1990), this court reversed the lower court's order denying visitation and remanded the cause for an evidentiary hearing to determine whether the natural father's visitation would be detrimental to the child.As this court in Kent, 573 So.2d at 63-64, stated:

The United States Supreme Court has held that a natural father, absent a finding that he is unfit, has a due process right to maintain a parental relationship with his children.Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 554, 54 L.Ed.2d 511(1978);Stanley v. Illinois, 405 U.S. 645, 649, 92 S.Ct. 1208, 1211, 31 L.Ed.2d 551(1972).Since 1967, Florida courts have recognized that a putative father also has the right with respect to his illegitimate children.Mixon v. Mize, 198 So.2d 373(Fla. 1st DCA1967).In Mixon, this court held that 'where a putative father acknowledges his relationship to an illegitimate child, manifests a genuine interest in the child's welfare and provides it with support, such father should be granted the right to visit the child at reasonable times unless such visits are shown to be detrimental to the child's welfare.'(Emphasis added in Kent )198 So.2d at 375.Florida courts have also recognized that the shared responsibility statute, section 61.13, Florida Statutes(1989), applies to both legitimate and illegitimate children, and that fathers of illegitimate children have the same rights with respect to their illegitimate children as legitimate fathers have with respect to their legitimate children ... unless those rights have been waived or legally terminated by a court.Section 61.13(2)(b)2.a provides, and Florida courts have held, that in custody proceedings a trial court must order that the parental responsibility for a minor child be shared, unless the court finds that shared parental responsibility would be detrimental to the child....The burden of showing that shared parental responsibility would be detrimental to the child is on the person objecting to shared parental responsibility.(citations omitted)

Despite this court's strong suggestion that visitation would be required, the Burdicks refused to mediate the issue.After a hearing, the lower court allowed visitation but restricted the visits to four hours a month, to take place at Mrs. Burdick's home in Stuart, and enjoined all the parties from informing the little girl that appellant is her biological father.

The trial court's order granting visitation denies appellant his due process right to maintain a parental relationship with his child by enjoining him from telling his daughter that he is her biological father and restricting his visitation to four hours a month.See, Kent v. Burdick, 573 So.2d at 63;Quilloin v. Walcott, 434 U.S. at 255, 98 S.Ct. at 554;Stanley v. Illinois, 405 U.S. at 649, 92 S.Ct. at 1211.The order stated that the court's intention is "depending on the circumstances, to expand both the length, location and terms of visitation so long as the psychological impacts on the child are minimized."Although the court indicated this is only an introductory step in establishing a normal parental relationship, nonetheless the court failed to establish a plan that would lead to such a relationship.While according the lower court broad discretion, we cannot overlook the basic proposition that a parent has a natural legal right to enjoy the custody, fellowship and companionship of his offspring.The only limitation to this rule of parental privilege is that between parent and child, the ultimate welfare of the child must be controlling.To hold otherwise would permit improper government interference with the rights of natural parents who are found fit to raise their children.SeeIn re Guardianship of D.A. McW., 429 So.2d 699(Fla. 4th DCA1983), approved, 460 So.2d 368(Fla.1984);Sparks v. Reeves, 97 So.2d 18(Fla.1957);In re Guardianship of Wilkes, 501 So.2d 704(Fla. 2d DCA1987);Paul v. Lusco, 530 So.2d 362(Fla. 2d DCA1988).Significantly, the Burdicks' evidence does not even remotely suggest unfitness on the part of Mr. Kent.

Our sistercourt, in Goodman v. Goodman, 571 So.2d 23(Fla. 2d DCA1990), held that "a trial court has broad discretion to limit visitation as may be necessary to protect the...