Do Both Parents Have a Right to Recover Pain and Suffering Damages in a Florida Wrongful Death Case When One Parent Had Primary Custody?


The unexpected and tragic death of a child can and does have a lasting effect on the parents. One can never prepare for the tragic loss of a young child due to an automobile accident, school injury, day care center injury, swimming / drowning injury, medical malpractice, bicycle accident, pedestrian accident, or other event.

The Wrongful Death of a child is governed by Chapter 768, Florida Statutes and related case law. It is important that the statutes are followed and that cases are pursued according to the requirements and formalities of Florida. Because of this, it is important for a family to retain the services of a Florida Personal Injury Lawyer when pursuing a case for the wrongful death of a child.

These days, it is common for parents to be divorced. Following the divorce, arrangements are made for visitation and custody in Florida. In most cases, one parent has the primary residential resposibility or primary custody of the child. The other parent has visitation and typically some overnight stays as part of an agreement or court order. After a divorce, both parents still have responsibilities and bonds with the child. When a child dies as a result of the wrongful or negligent acts of another person, business, or government entity, both parents (whether married, divorced, or never married) have a right to an award of pain and suffering related damages for the loss of a child.

In McDonald v. Forman, 238 So.2d 131 (Fla. 4th D.C.A. 1970), the case involved the death of a minor child. The wrongful death of the child occurred while the parents were still married. Subsequent to the death of the child, the parents divorced. The Court ruled that both parents had a right to recover for pain and suffering damages and related compensation for the death of the child. The Fourth District Court of Appeal noted that the legal custody of the child is immaterial for purposes of qualifying a parent for wrongful death damages for the death of the child. In other words, both parents have a right to recover damages for the loss or wrongful death of the child.

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