Guardianship of a minor can be a complex issue. The words “guardian” and “guardianship” can mean different things in different courts and in different contexts. As a result, it can sometimes be difficult to determine which statutes apply and which court division has jurisdiction to determine the guardianship or custody of a minor child. To address some of the confusion experienced in the Eleventh Judicial Circuit in the Family, Probate, and Unified Family Divisions, Chief Judge Nushin G. Sayfie issued Administrative Order 22-06 on April 29, 2022, setting forth the guidelines applicable to guardianship cases involving minors. This Administrative Order can be found under the General Information tab on the Eleventh Judicial Circuit home page. Although cases filed in the improper division will be transferred to the proper division by the presiding judge pursuant to Administrative Order 22-06 and will not be dismissed, it is best to file the case in the proper division to avoid unnecessary delay or hardship to the family.

Unified Children’s Court Division

Cases will be filed in the Unified Children’s Court Division under two circumstances. Dependency cases involving allegations of abuse, abandonment, or neglect of minor children are governed by Chapter 39 of the Florida Statutes and are generally initiated by a call to the 1-800-96-ABUSE hotline.  If the Department of Children and Families files a petition to have a minor child declared to be a dependent child pursuant to Chapter 39 of the Florida Statutes, the case will be filed in the Unified Children’s Court Division pursuant to section 39.501, Florida Statutes and Florida Rule of Juvenile Procedure 8.201.  In many cases, the parent or parents of the minor child will be given an opportunity to reunite with the child by engaging in therapeutic and/or rehabilitative services and by completing the tasks set forth in a case plan. If the parent or parents are unable to safely reunite with the child, the case could proceed to termination of parental rights with adoption, permanent guardianship, or another planned living arrangement as a permanency goal. Even where the parental rights are not terminated, permanent guardianship or another planned living arrangement may be the appropriate goal. When a child is placed in permanent guardianship pursuant to section 39.6221, Florida Statutes, jurisdiction over the child will remain in the dependency case and the case will remain in the Unified Children’s Court Division even where the Court terminates supervision over the family. In other words, where a case closes with a child in permanent guardianship pursuant to section 39.6221, Florida Statutes, all future decisions regarding the child’s care and custody will be decided in the dependency case. If the appointed permanent guardian is no longer able or willing to continue as the guardian, the dependency case will be reopened in the Unified Children’s Court Division without the need to file a petition pursuant to section 751.02, Florida Statutes, or any other Family Law or Probate rule or statute.

Related Cases which fall within the scope of Administrative Order No. 17-8, as modified or amended, must also be filed in the Unified Children’s Court Division. Any related case, as defined by Administrative Order No. 17-8, will be transferred to the Unified Children’s Court Division.

Family Division

Requests for Guardianship of the Person of a Minor Child made by an extended family member as defined by section 751.011(2), Florida Statutes, based upon allegations of abuse, abandonment, or neglect will be treated as a Petition for Temporary Custody by Extended Family pursuant to section 751.03(9), Florida Statutes, and will be filed in the Family Division where there is no related dependency case in the Unified Children’s Court Division. Where there is a related dependency case in the Unified Children’s Court Division, the matter will remain under the jurisdiction of the Unified Children’s Court Division.

Where the parents of a minor child consent to guardianship or custody of the minor by another person and the person seeking guardianship or custody is an extended family member as defined by section 751.011(2), Florida Statutes, and there is no related dependency case in the Unified Children’s Court Division, then the matter shall be filed in the Family Division to be treated as a Petition for Temporary Custody by Extended Family pursuant to sections 751.02 and 751.03(9), Florida Statutes.

Probate Division

Parents Give Consent

Where the parents of a minor child consent to guardianship or custody of the minor by another person and the person seeking guardianship or custody does not qualify as an extended family member under 751.011(2), but does qualify as a “person interested in the welfare of a minor” under 744.3021(1), and there are no allegations of abuse, abandonment or neglect and there is no related dependency case in the Unified Children’s Court Division, then the matter will be filed in the Probate Division as a Petition for Guardianship of the Person of the Minor pursuant to Chapter 744 of the Florida Statutes.

Parents Are Deceased

Where a family member of a minor with a relationship described in 744.3021(1) seeks guardianship of the minor after the death of the minor’s parents, and there is no related dependency case in the Unified Children’s Court Division, then the matter will be heard in the Probate Division as a Petition for Guardianship of the Person of the Minor pursuant to Chapter 744 of the Florida Statutes.

Where another person interested in the welfare of a minor seeks guardianship of the minor after the death of the minor’s parents, and there is no related dependency case in the Unified Children’s Court Division, then the matter will be heard in the Probate Division as a Petition for Guardianship of the Person of the Minor pursuant to Chapter 744 of the Florida Statutes.

Pursuant to Administrative Order 22-06, the Administrative Judge of the Probate Division is authorized to create a protocol for cases involving a Petition for Guardianship of the Person of the Minor following the death of the parents of a minor child, which may include referrals to Family Court Services for home studies, psychological evaluations of proposed guardians, etc.

Hybrid Petitions

Petitions for Guardianship of Person and Property of a Minor will be heard in the Probate Division where a person described in 744.3021(1) is petitioning to become the Guardian of the Person and the Property of a Minor, and there are no allegations of abuse, abandonment or neglect, and there is no related dependency case in the Unified Children’s Court Division.  The Administrative Judge of the Probate Division is authorized to create a protocol for these hybrid cases, including a protocol for when the petitioner is not a family member who can prove consanguinity. As noted previously, where guardianship or custody of the minor is requested, the protocol may include referrals to Family Court Services for home studies, psychological evaluations of proposed guardians, etc.

Property and Settlements

Petitions for Guardianship of a Minor’s Property and Minor Settlements pursuant to section 744.387, Florida Statutes are properly heard in the Probate Division where an action has not been filed in the Civil Division. See Local Rule R-1-9; Administrative Order No. 08-18, “In Re: Re-Establishment of Standards and Procedures for The Protection of Minors in The Settlement of Personal Injury, Wrongful Death and Medical Malpractice Lawsuits and Claims,” as it may be modified, amended, or replaced.

Incapacitated Minors Subject to Chapter 39, Florida Statutes

Although not expressly addressed in Administrative Order 22-06, it is worth mentioning for the sake of clarification that there is another type of petition for guardianship involving minor children that is properly filed in the Probate Division. Pursuant to section 744.3021(4), a petition requesting the appointment of a guardian due to incapacity pursuant to section 744.3201, Florida Statutes, may be filed for a minor who is the subject of any proceeding under chapter 39 and who is aged 17 years and 6 months or older, may be filed in the court having jurisdiction over guardianship proceedings under section 744.331, Florida Statutes, i.e. the Probate Division. The alleged incapacitated minor subject to a section 744.331 proceeding will be provided with all the due process rights conferred upon an alleged incapacitated adult pursuant to Chapter 744 and applicable court rules. Any order of adjudication under section 744.331, together with any letters of limited or plenary guardianship may issue upon the minor’s 18th birthday or as soon thereafter as possible. More simply stated, where a minor child subject to Chapter 39 proceedings is nearing the age of majority and it is believed that the minor child is likely to be declared an incapacitated adult for any of the reasons governed by sections 744.3201 and 744.331, Florida Statutes, the guardianship proceedings may begin in the Probate Division while the child is still a minor and the minor child will be provided with all of the due process afforded to adults subject to these proceedings. The guardianship, if granted, will begin upon the minor child’s 18th birthday.

Proceedings under this section are to be conducted separately from any other proceeding.