MCCLAM v. CARRIER (2023)

We reverse the order denying the appellant mother's emergency motion for pickup of her child from the father.¹ The parties are unwed, but the father's paternity has been established by voluntary acknowledgment. See § 742.10(1), (4), Fla. Stat. (2016). The mother filed this action when the father refused to return the child after a visit. The court denied the request for pickup order, because it found the father had established paternity which carried with it custody rights, and additionally the mother and father had entered into a written agreement granting the father custody rights. The court erred in determining that the father had a right to custody on either ground.

The mother is the natural guardian of the child and entitled to primary custody. See § 744.301(1), Fla. Stat. (2022) (“The mother of a child born out of wedlock is the natural guardian of the child and is entitled to primary residential care and custody of the child unless the court enters an order stating otherwise.”); Perez v. Giledes, 912 So. 2d 32, 33 (Fla. 4th DCA 2005). At the time of the trial court's ruling,² case law interpreting the statute provided that the establishment of the father's paternity alone does not give him custody rights, and an emergency pickup order is not a vehicle to make an initial custody decision. See Nelson v. Mirra, 335 So. 3d 236, 238 (Fla. 5th DCA 2022). Thus, the trial court erred by denying the mother's emergency pickup motion because of the father's established paternity.

The court also erred in denying the motion based on an agreement between the parties which the court did not review or approve. Section 744.301(1) required a court order to entitle anyone other than the mother to primary care and custody of the child. § 744.301(1), Fla. Stat (2022); see also Harrier v. Warmke, 876 So. 2d 603, 605 n.1 (Fla. 2d DCA 2004) (holding that private agreement granting maternal grandparents custody rights, which did not include waiver of mother's own parental rights and was never ratified by the circuit court in a temporary custody order, did not grant maternal grandparents custody rights superior to those of the mother); In re N.Z.B., 779 So. 2d 508, 511–12 (Fla. 2d DCA 2000) (father was free to withdraw his consent to custody of child with maternal grandmother which he had agreed to in a private agreement when no court had approved the agreement).

As the trial court's reasoning provided no authority for denying the mother a pickup order for her child, we reverse.

Reversed and remanded for further proceedings.

FOOTNOTES

1.   We have jurisdiction pursuant to Fla. R. App. P. 9.130(a)(3)(C)(iii)b.

2.   As of July 1, 2023, the Legislature amended section 744.301(1), Florida Statutes, to provide that once a father establishes paternity pursuant to section 742.10(1) or section 742.011, Florida Statutes, he becomes a natural parent entitled to the same rights and responsibilities as the mother. However, statutory amendments are generally prospective and will not be applied retroactively outside clear legislative intent for retroactive application. See Fla. Ins. Guar. Ass'n v. Devon Neighborhood Ass'n, 67 So. 3d 187, 196 (Fla. 2011) (“[T]he Legislature's inclusion of an effective date for an amendment is considered to be evidence rebutting intent for retroactive application of a law.”). “The presumption against retroactive application of a law that affects substantive rights, liabilities, or duties is a well-established rule of statutory construction.” Arrow Air, Inc. v. Walsh, 645 So. 2d 422, 425 (Fla. 1994); see also Hahn v. Hahn, 42 So. 3d 945, 947 (Fla. 4th DCA 2010) (“[A]lthough the trial court correctly noted that the 2008 amendments to section 61.13 removed references to ‘primary residential parent,’ the court's retroactive application of these amendments to remove the former wife's designation as the ‘primary residential parent’ and establish 50/50 time-sharing between the parties clearly impaired the former wife's existing rights over her children. The inclusion of the October 1, 2008, effective date for the amendments also rebuts any argument that retroactive application of section 61.13, as amended, was intended by the Legislature.”) (internal citation omitted).

Warner, J.

May and Forst, JJ., concur.