Russo v. Burgos (675 So. 2d 216, 1996)

KLEIN, Judge.

Appellants are the maternal grandparents of a two-year-old child who has been living with them since her birth. The child’s mother is deceased. Appellee, who was not married to the mother, alleges he is the father. He filed a petition for custody, and the grandparents counterpetitioned. They bring this appeal from an order dismissing their counterpetition with prejudice, and we reverse.

The grandparents’ counterpetition for custody is based on section 61.13(7), Florida Statutes (1993), which provides:

In any case where the child is actually residing with a grandparent in a stable relationship, whether the court has awarded custody to the grandparent or not, the court may recognize the grandparents as having the same standing as parents for evaluating what custody arrangements are in the best interest of the child.

The father argues that the grandparents do not have standing to proceed under chapter 61, and are relegated to bringing a chapter 39 dependency proceeding, based on In re the Interest of J.M.Z., 635 So.2d 134 (Fla. 1st DCA 1994). In J.M.Z. the child had been living with the grandparents and at times the parents were also living there. After the parents went out of state for employment and left the child with the grandmother, the grandmother commenced an action for custody pursuant to both chapter 39 and section 61.13(7). The court found that the grandmother did not prove her claim under chapter 39 by clear and convincing evidence, but did award her custody under section 61.13(7) because it was in the child’s best interest.

The first district reversed, concluding that section 61.13(7) does not authorize a grandparent to bring an independent action for custody, but “merely grants standing to the grandparents t