JENNALEE K. NELSON

v.

JACOB MIRRA

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

JENNALEE K. NELSON,

Appellant,

v. Case No. 5D21-2469 LT Case No. 2021-DR-11065-0

JACOB MIRRA,

Appellee.

________________________________/

Opinion filed March 21, 2022

Appeal from the Circuit Court for Orange County, Joshua A. Mize, Judge.

Jill W. Warren, Pensacola, for Appellant.

Laura Davis Smith and Sonja A. Jean, of Davis Smith & Jean, LLC, Coral Gables, for Appellee.

TRAVER, J.

Jennalee K. Nelson (“Mother”) appeals the trial court’s denial of her emergency verified motion for child pick-up order. We reverse because the paternity status of Jacob Mirra (“Father”) did not give him co-equal custody rights without a prior court order awarding him these rights. In September 2021, Mother filed an emergency verified petition, requesting the trial court order law enforcement to pick up her then-twentymonth-old daughter from Father. The parties agree that Mother attached a copy of the child’s birth certificate to her petition, and it had Father’s name on it. Mother alleged, however, that she was not married to Father, and Father’s paternity had not been established. She contended that Father had withheld the child from her for a month, and that his behavior was “erratic, manipulative, and threatening.” She also expressed concern about Father’s history of alcoholism. Mother “believed” the child was living with Father in New Jersey. The trial court summarily denied the emergency petition. It ruled that Father “is on the child’s birth certificate and is therefore the child’s legal father. [Father] has an equal right to custody of the child as [Mother].” It invited either party to file a petition to establish timesharing. We review de novo the trial court’s summary denial of an emergency petition for child pick-up order. See generally In re T.J., 59 So. 3d 1187, 1188 (Fla. 3d DCA 2011). Mother now acknowledges that Father’s paternity had been established when she filed her emergency motion. But she contends the trial court should not have awarded Father custody without a prior court order establishing it. Father does not dispute that his paternity status alone does not grant him custody rights, but he contends we should nevertheless affirm¹ because the trial court lacked Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) jurisdiction over the parties’ child. Both parties are correct that the trial court erred by conflating the Father’s paternity status with his custody rights. Paternity describes “[t]he quality, state, or condition of being a father, esp[ecially] a biological one.” Paternity, Black’s Law Dictionary (11th ed. 2019). Florida law outlines a variety of ways for the father of a child born out of wedlock to establish paternity. See § 742.10(1), Fla. Stat. (2021). Here, the trial court correctly identified one of these situations: an unmarried father’s voluntary acknowledgement of paternity. Id.; § 382.013(2)(c), Fla. Stat. (2021). Following this acknowledgement, the unmarried father’s name is added to the child’s birth certificate, and a rebuttable presumption arises that he is the child’s legal father. §§ 742.10(1), 90.304, Fla. Stat. (2021). If neither parent rescinds the acknowledgement or files a judicial action relating to the child within sixty days, the voluntary acknowledgement establishes paternity subject to exceptions² that are inapplicable here. Id. § 742.10(4). In this case, the parties agree that Father signed a voluntary acknowledgement of paternity, and sixty days passed without rescission or judicial action. Father is therefore the child’s legal father.³ In this context, however, Father’s paternity alone does not grant him child custody. See § 744.301(1), Fla. Stat. (2021). The Florida Legislature has granted “primary residential care and custody” of a child born out of wedlock to the child’s mother “unless the court enters an order stating otherwise.” Id. § 744.301(1). Custody refers to “[t]he care or control of a . . . person . . . for . . . preservation, or security.” Custody, Black’s Law Dictionary (11th ed. 2019); see also 23 Fla. Prac., Fla. Family Law § 7.6 (June 2021)