Quick Info: Do Grandparents Have Visitation or Custody Rights in Florida?
YES but only if: Both parents are deceased, missing, or in a persistent vegetative state OR one parent is deceased, missing, or in a vegetative state AND the other parent has been convicted of a felony or an offense of violence evincing behavior that poses a substantial threat of harm to the minor child’s health or welfare. If there is one parent who is around and not a violent felon, grandparents have no rights to visitation.
Overview of Visitation for Grandparents
Although a divorce is technically the legal separation of two spouses and the dissolution of their marriage, in reality, the families of both spouses can be impacted by a divorce. Grandparents in particular may find that a divorce can mean the end of any ability to see their grandchildren. While some states have, in the past, given grandparents some ability to ask the court for visitation rights, Florida has traditionally been hesitant to grant grandparents visitation rights, especially when one or both parents do not want a grandparent to see their child. Where the parents and grandparents agree as to the frequency and type of visitation between the child and the grandparents, courts will generally not interfere with such an agreement. But where grandparents want visitation rights and one parent does not want to allow visitation, Florida courts will need to decide what, if any, visitation rights to award the grandparents.
The Current State of the Law on Grandparent Rights
Unfortunately, grandparent rights in Florida still remain hard to obtain. Even with the most recent statutory update, very specific criteria must be met in order for a grandparent to obtain the right to see his or her grandchild.
Effective July 1, 2015, Grandparent’s Rights in the State of Florida have changed. Before a grandparent could petition for visitation rights if the parent’s marriage had been dissolved, a parent had deserted the child, or the child was born out of wedlock and the parents never married. Still, it was very tough to obtain grandparent rights.
With the passage of Florida Statute 752.011, Petition for grandparent visitation with minor children, grandparents in Florida see a glimmer of hope. But is this glimmer simply a mirage? Is this statute another attempt by the legislature that appears to provide grandparents with rights but has no teeth?
The new statute allows for grandparent visitation under the following conditions:
- Both parents are deceased, missing, or in a persistent vegetative state
- One parent is deceased, missing, or in a vegetative state AND
- The other parent has been convicted of a felony or an offense of violence evincing behavior that poses a substantial threat of harm to the minor child’s health or welfare
Essentially, if there is one parent who is around and not a violent felon, grandparents have no rights to visitation. So far, there is no case law out there interpreting this statute. It appears that, to date, there are no cases that meet this criteria that have been heard by the appellate courts.
So what happens if your family meets this criteria? First, a preliminary hearing is held to determine whether there appears to be enough evidence of parental unfitness or significant harm to the child. If the grandparents do not meet their burden, they may end up paying the parent’s attorney’s fees.
If there is evidence that a parent is unfit, the Court may appoint a guardian ad litem to protect the children’s best interest.
If the grandparents meet their initial burden, the case will go to mediation. If the case is not resolved at mediation, a final hearing will be held. Even if the conditions regarding the parents are met, the Court will only grant visitation if the following additional conditions are met:
- A parent is unfit or there is significant harm to the child
- Visitation is in the best interest of the minor child AND
- The visitation will not substantially harm the parent-child relationship
The Court must consider a list of thirteen factors when determining whether the visitation with the grandparent is in the best interest of the minor child. It is best to review those factors when preparing a case regarding grandparent rights. Gathering evidence that will support each factor will be helpful to the attorney handling your case.
In addition, the statute also lists several factors the Court must consider when determining whether visitation will cause harm to the parent-child relationship. A grandparent considering filing a petition under the statute should also review these listed factors and collect evidence to support each applicable factor.
A grandparent can file an action requesting visitation only once during any 2-year period, and grandparent visitation, once granted, can be terminated upon a showing of a substantial change in circumstances.
History of Grandparent Rights in Florida
From the year 2000 to the present, the grandparent visitation statute on the books allowed a grandparent to file a petition and obtain visitation rights as to a grandchild when it was in the best interest of the child and one of three conditions had been met:
- The parents’ marriage has been dissolved;
- A parent has deserted the child; or
- The child was born out of wedlock and the parents never marry.
A court was allowed to consider a number of factors when it determined what was in the best interest of the child. None of these factors were determinative or conclusive in and of themselves. In other words, a court would not likely make a decision regarding grandparent visitation based only on the presence or absence of one factor. Instead, a court would look at the presence or absence of all of the following factors before making a ruling:
- The willingness of the grandparents to encourage a close relationship between the child and parents;
- The length and quality of the relationship between the grandparents and child before the divorce (in other words, a grandparent is better off if he or she spent a significant amount of time caring for a child before the divorce);
- If the child was old enough to express a preference, that preference would be considered
- The mental and physical health of the child;
- The mental and physical health of the grandparents; and
- Any other factors the judge wishes to consider.
Prior to 2000, there was another way to obtain grandparents’ rights. You could obtain rights when the minor was living with both natural parents who were still married to each other whether or not there was a broken relationship between either or both parents of the minor child and the grandparent, and either or both parents have used their parental authority to prohibit a relationship between the minor child and the grandparents. This part of the statute appeared to be the most useful to grandparents in this state. However, the usefulness of the statute was short-lived.
Two Florida Supreme Court cases made this provision in the statute useless and the most useful parent of the statute was deemed unconstitutional.
In 1996 the Florida Supreme Court in Beagle v. Beagle, declared the grandparent rights statute unconstitutional because it invaded the fundamental privacy rights of parents and constituted impermissible state interference with parental rights that are protected by the State of Florida Constitution. The 1980, Florida privacy amendment to the constitution reads, “Every natural person has the right to be let alone and free from government intrusion into his private life except as otherwise provided herein.” The Florida Supreme Court also found that the statute interfered with the privacy rights provided by the Constitution of the United States.
In Beagle, the question for the Court was whether a court could award grandparent visitation rights over the objection of one of the parents. In Beagle, the child was living at home with both natural parents. The grandparents Roy and Sharon Beagle filed a petition for visitation rights with their granddaughter, Amber Beagle. Amber’s parents objected to allowing the grandparents any visitation rights. In this case, the Supreme Court found that there was no evidence of the child suffering any harm by the denial of grandparent visitation rights. Thus, the Supreme Court concluded, a court could not award grandparent visitation rights where there was an intact family, at least one of the parents objected, and there was no evidence of the child suffering any harm. The Court said that to do so would be to invade the fundamental privacy rights of parents.
Two years after Beagle, in Von Eiff v. Azicri, the Supreme Court of Florida once again found that the grandparent rights statute was unconstitutional because it infringed on the privacy rights of the parents. In that case, the Von Eiffs were married and had a daughter together, Kelly. In 1993, the natural mother of Kelly died. The husband remarried a year later and shortly thereafter his new wife legally adopted Kelly. The Azicris, the maternal grandparents of Kelly, sued for visitation rights. The statute allowed them to ask for visitation rights in the case where “one or both” of the parents of the child are deceased. Looking back to its recent decision in Beagle, however, the Florida Supreme Court found little difference between the fundamental privacy rights of an “intact family” and those of a family in which one of the parents died and the fundamental privacy rights of a widowed parent. Not only this, but the Supreme Court found that, by remarrying and the new wife adopting Kelly, the husband had created a new “intact” family. The Florida Supreme Court concluded that the particular statute the Azicris relied upon was unconstitutional and, again, that grandparents did not have any right to visitation with their grandchildren where one of the parents objects and there is no evidence suggesting that the child is being harmed.
In the year 2000, the Florida legislature updated its statute to conform to the judicial rulings and the provision that allowed for visitation where an intact family still existed and the parents would simply not allow the visitation was stricken.
What happens when one of the child’s natural parents remarries and the stepparent adopts the child? Will the grandparent’s visitation rights be automatically terminated?
Florida will not automatically terminate any grandparent visitation rights just because a natural parent remarries and the child is subsequently adopted by the stepparent. However, a Florida court can still terminate the grandparents’ visitation rights upon the request of the step-parent if it believes that continued visitation with the grandparents is not in the child’s best interests. Before a court decides this, though, it must hold a hearing and allow the grandparents an opportunity to be heard.
What About Grandparent Rights Granted by Another Jurisdiction?
Not all states have limited grandparent visitation rights like Florida has done. Some states allow grandparents to be involved in divorce or custody cases and obtain visitation rights under certain circumstances. For instance, in Connecticut and Delaware, courts may award grandparents visitation rights if doing so is in the child’s best interest (the adoption of the child by a new spouse may terminate these visitation rights, however). Some grandparents may think that, because another state has awarded them visitation rights, Florida courts are obligated to honor and enforce those orders.
By way of example, suppose Marcos and Linda reside in Delaware and eventually have a child, Lucy. Linda’s parents are heavily involved in the life of their new grandchild and are used to spending a great deal of time visiting and babysitting the newborn. Several years later, Marcos and Linda decide that they are no longer compatible with one another and decide to divorce. In states like Delaware, Linda’s parents may be able to ask for and secure visitation rights to continue to see their grandchild even after the divorce.
However, suppose that a few more years pass and Marcos remarries. His new wife, Estrella, successfully adopts Lucy. In Delaware, the successful adoption of a child by a new spouse will terminate the visitation rights of Linda’s parents.
This raises the question: If grandparents are awarded visitation rights in a different state’s courts, and then the child and his or her parents relocate to Florida, do the grandparents still have visitation rights? Grandparents may be dismayed to learn that, even if another state court lawfully awards them visitation rights, those rights may be invalidated in Florida. In the 2012 case Fazzini v. Davis, Florida courts found that, even though a grandparent had visitation rights pursuant to a Virginia court order, an “unanticipated substantial change” could warrant terminating those rights.
In Davis, a mother and father were living in Virginia with their three-month-old child when the mother tragically died in a car crash. At the time, the father was on active duty in the military. He decided to place the child with his parents in Florida until he was discharged. In the meantime, the maternal grandmother of the child sued the father for visitation rights. The father and the grandmother agreed the grandmother should have some visitation rights with the child, and an order to that effect was entered by the Virginia courts.
After being discharged from active duty, the father relocated to Florida and assumed responsibility for the care of his child. He eventually remarried and his new wife adopted the child. When his relationship with the grandmother soured, the father asked Florida courts to terminate the grandmother’s right to see the child under the Virginia order.
The father argued, in part, that the grandmother was threatening to tell the child (who was three years old at the time) that the father’s new wife was not the child’s biological mother (the child was too young to remember her biological mother) and that he believed the grandmother’s threatened course of action was not in the best interest of the child. A Florida court agreed and found that the grandmother’s visitation rights should be subordinate to the rights of the child’s parents. Thus, the court found there was a “substantial and material change of circumstance” since the Virginia order had been entered, justifying the termination of the grandmother’s visitation rights.
Conclusion on Grandparent Visitation Rights
As one can see, grandparent visitation rights in Florida are not afforded much consideration. As time has progressed, the opportunities for grandparents to visit with their grandchildren in Florida have become fewer, and taking advantage of them has become more difficult.
For parents of children, this may be welcome news. Sometimes the presence of grandparents can complicate efforts to raise children the way parents see fit. Florida cases are filled with examples of grandparents who were accused of being critical of the parenting style of the natural parents, who wanted to undermine the authority of a stepparent, or who otherwise tried to create a wedge or rift between a child and parent. In such cases, Florida’s laws recognize that the relationship between a parent (or adoptive parent) and a child is more important and overrides any interest grandparents may have in seeing and developing a relationship with their grandchildren.
But if you are a grandparent, the state of the current law regarding grandparent rights may be disheartening. While the 2015 Grandparent’s Visitation statute affords grandparents some rights, those rights are extended to a select few that meet the very specific criteria listed in the statute. While the law has not been ruled unconstitutional, it is still too soon to see if this new law has any staying power.
Author’s note from Attorney Howard Iken: Grandparents in Florida face challenges in obtaining visitation rights with their grandchildren after a divorce. While the state updated the statute in 2015 to allow for visitation rights under certain conditions, the criteria are still very specific, and the statute has not been tested in court. If a grandparent meets the initial burden, a preliminary hearing is held, and if the case proceeds, it will go to mediation and then a final hearing. The court must consider a list of factors when determining whether visitation is in the best interest of the child and will not harm the parent-child relationship. Grandparents can only file for visitation once in a two-year period, and visitation rights can be terminated upon a substantial change in circumstances.