Lusker v. Guardianship of Lusker, 82-1135

• Decision Date: 03 June 1983
• Docket Number: No. 82-1135,82-1135
• Parties: Ben E. LUSKER, Appellant, v. GUARDIANSHIP OF Bena Christine LUSKER, Appellee.
• Court: Florida District Court of Appeals

Page 951

434 So.2d 951

Ben E. LUSKER, Appellant, v. GUARDIANSHIP OF Bena Christine LUSKER, Appellee.

No. 82-1135.

District Court of Appeal of Florida,

Second District.

June 3, 1983.

Rehearing Denied July 18, 1983.

Peter N. Macaluso, Tampa, for appellant.

Phillip A. Baumann of Phillip A. Baumann, P.A., Tampa, for appellee.

SCHOONOVER, Judge.

The appellant, Ben Lusker, has appealed a final order confirming the appointment of appellees, J. Robert Lane and his wife Dana Lane, as guardians of his natural minor daughter, Bena Christine Lusker. We find that the trial court erred in entering the order, and we accordingly reverse.

Audrey Lusker, the natural mother of Bena Christine Lusker, was divorced from the appellant on January 23, 1978. At that time she was awarded custody of the child. Mrs. Lusker became terminally ill and, in contemplation of her death, she filed a petition for the appointment of appellees as standby guardians of her daughter. The appellant did not join in the petition and refused to consent to the appointment. The appellees were appointed standby guardians, over the objection of the appellant, on August 26, 1981. The appellant did not appeal this order. Mrs. Lusker died on February 6, 1982, and on April 13, 1982, the trial court confirmed the appellees' appointment as guardians. It is from this order that the appellant has appealed.

The appellees contend that the trial court had the authority to appoint them as guardians because when Mrs. Lusker was awarded custody of the child in the divorce proceeding, appellant lost his right as natural guardian of the child and accordingly did not have to join the petition. The appellees also contend that, even if it was necessary for the appellant to join in the petition, he cannot complain because he did not appeal the order appointing them within thirty days of the rendition of the original order. We disagree with both contentions.

Section 744.301(1), Florida Statutes (1981), defines natural guardianship as:

744.301 Natural guardians.--

(1) The mother and father jointly are natural guardians of their own children and of their adopted children, during minority. If one parent dies, the natural guardianship shall pass to the surviving parent, and the right shall continue even though the surviving parent remarries. If the marriage between the parents is dissolved, the natural guardianship shall belong to the parent to whom the custody of the child is awarded. If the parents are given joint custody, then both shall continue as natural guardians. If the marriage is dissolved and neither the father nor the mother is given custody of the child, neither shall act as natural guardian of the child. The mother of a child born out of wedlock is the natural guardian of the child.

The statute does not automatically extinguish the rights of a noncustodial parent as natural guardian of his child. The statute provides that if a marriage between parents is dissolved, the natural guardianship shall belong to the parent to whom the custody of the child is awarded. By doing so, the parent who has custody of the child has the ability to make necessary day to day decisions concerning the child's welfare, e.g., consent to an operation, without the necessity of having to confer with the absent parent when time does not permit. However, if a change of custody is properly sought and obtained, the other parent then regains the natural guardianship of the child. Thus the guardianship is passed from parent to parent depending upon who had custody, not extinguished because of an award of custody. The same statute provides that if one parent dies, the natural guardianship shall pass to the surviving parent. If we accepted the appellees' contention this portion of the statute would be meaningless. A statute is to be construed so that it is meaningful in all of its parts. State v. Rodriquez, 365 So.2d 157 (Fla.1978).

Accordingly, pursuant to section 744.301(1), the natural guardianship belongs to the parent to whom the custody of the child is awarded, but if that custodial parent dies, the natural guardianship passes to the surviving parent, and the burden is then upon the person opposing this parental right to prove by clear and convincing evidence that the parent is unfit and that the best interests of the child would be promoted by giving custody to the nonparent. Torres v. Van Eepoel, 98 So.2d 735 (Fla.1957). Furthermore, even if one parent has been granted custody, both parents must join in a petition for the appointment of a standby guardian.

Mrs. Lusker filed the petition for the appointment of appellees as standby guardians for her child. The statute dealing with standby guardianship is section 744.304(1), Florida Statutes (1981), which provides:

744.304 Standby guardianship.--

(1) Upon petition or consent of both parents, natural or adoptive, if living, or of the surviving parent, a standby guardian of the person or property of an incompetent may be appointed by the court. The court may also appoint an alternate to the guardian to act if the standby guardian shall renounce, die, or become incapacitated after the death of the last surviving parent of the incompetent person.

The statute requires the petition or consent of both parents, natural or adoptive, if living, or of the surviving parent. In the case sub judice, the appellant did not give his consent. Furtherm...