Grandparent's Visitation Rights in Florida Proceedings Relating to Children:
Florida has a statute which provided grandparents with the right to visitation, and it's actually still found in Chapter 752 of the Florida Statutes. However, that statute has been declared unconstitutional by the Florida Supreme Court in numerous decisions which claim the statute violates the Florida Constitution, therefore invalidating it.
Simply put, the Supreme Court felt that the statute was in violation of the parental rights. Furthermore, it was decided that the parents are ultimately responsible for protecting and determining what is in the best interests of their children when it comes to visitation and with whom.
A recent grandparent rights bill, co-sponsored by Sen. Joseph Abruzzo, D-Wellington, was signed into law by Gov. Rick Scott in June of 2015. The statute change only consideration of grandparent's rights if a grandchild's parents are both dead, missing or in a constant vegetative state. Any of the previous requirements are also still applicable if the other parent has been convicted of a felony.
Otherwise, grandparents continue to be blocked from having their petitions for legal visitation considered within the courts. Florida rulings continue to uphold the parent's right to control access to their children.
Although some states may provide Grandparents with the opportunity to intervene in a divorce or custody case for purposes of obtaining visitation, Florida will typically only honor previous rights for visitation that were awarded in other states.
However, a recent case, Fazzini vs. Davis, 37 Fla L. Weekly D1659 (2012) suggests that Florida Courts may invalidate any granting of rights to grandparents which occurred in other states.
If a parent opposes grandparent's involvement with their child, then the grandparent typically does not have a right to visitation, but there may still be an opportunity for an attorney to provide strong arguments as to why a grandparent's involvement should be permitted to continue.
If you look at Florida Statute § 39.509, you'll notice that there is a provision for grandparents in juvenile court cases where a child has been removed from their parent's care. If conditions under that statute are present, then a grandparent can have visitation rights.
There is also a possibility of a grandparent gaining concurrent custody of a grandchild along with the biological parents of that child, however an agreement between the parents and grandparents needs to be reached in order for this type of court order to be granted.
The Process for Obtaining Concurrent Custody in Florida:
Any extended family member, including but not limited to grandparents, may bring a petition for concurrent custody to the court. In order for the petition to be considered, the legal parents of the child must provide signed and notarized consent.
The petitioner must have had physical custody of the child for a minimum period of at least 10 days within any 30-day period occurring within the last year (12 months).
Power of Attorney:
Another method that may be an option for grandparents would be the use of a power of attorney. With this method, a grandparent may acquire the right to take care of and provide for their grandchild. The power of attorney would provide the grandparent or custodian the legal rights to care for the child during the absence of the parent and enables them to get the child proper medical attention and daily care. This is also one of the faster and easier methods for gaining temporary authority to ensure the needs of a child are provided for. As easy as a power of attorney may be to obtain in some situations, always remember that a parent can simply revoke the power of attorney at any time without court order.
Although very difficult to accomplish, under the same law it may still be possible for a grandparent or any other extended family member to gain custody of a child - even when the parents object. There must be very strong, clear and convincing evidence - an extremely high level of proof and facts to warrant such a change - in order for this method to be a possibility. Temporary custody of the child can be provided for under a Chapter 751 proceeding, and would be based upon certain circumstances. The inability for a parent to provide proper care for their child or problems at the child's primary residence may be factored into consideration.
Florida courts also recognize that the home of a grandparent is often a better placement option as opposed to foster care or termination of parental rights. The decisions must be weighed very carefully, as grandparent's attempting to establish their rights may actually become intrusive and undermine parent-child relationships - which can end up having a destructive effect.
From the 2012 Florida Statutes:
39.509 Grandparents rights.—Notwithstanding any other provision of law, a maternal or paternal grandparent as well as a step-grandparent is entitled to reasonable visitation with his or her grandchild who has been adjudicated a dependent child and taken from the physical custody of the parent unless the court finds that such visitation is not in the best interest of the child or that such visitation would interfere with the goals of the case plan. Reasonable visitation may be unsupervised and, where appropriate and feasible, may be frequent and continuing. Any order for visitation or other contact must conform to the provisions of s. 39.0139.
(1) Grandparent visitation may take place in the home of the grandparent unless there is a compelling reason for denying such a visitation. The department's caseworker shall arrange the visitation to which a grandparent is entitled pursuant to this section. The state shall not charge a fee for any costs associated with arranging the visitation. However, the grandparent shall pay for the child's cost of transportation when the visitation is to take place in the grandparent's home. The caseworker shall document the reasons for any decision to restrict a grandparent's visitation.
(2) A grandparent entitled to visitation pursuant to this section shall not be restricted from appropriate displays of affection to the child, such as appropriately hugging or kissing his or her grandchild. Gifts, cards, and letters from the grandparent and other family members shall not be denied to a child who has been adjudicated a dependent child.
(3) Any attempt by a grandparent to facilitate a meeting between the child who has been adjudicated a dependent child and the child's parent or legal custodian, or any other person in violation of a court order shall automatically terminate future visitation rights of the grandparent.
(4) When the child has been returned to the physical custody of his or her parent, the visitation rights granted pursuant to this section shall terminate.
(5) The termination of parental rights does not affect the rights of grandparents unless the court finds that such visitation is not in the best interest of the child or that such visitation would interfere with the goals of permanency planning for the child.
(6) In determining whether grandparental visitation is not in the child's best interest, consideration may be given to the following:
(a) The finding of guilt, regardless of adjudication, or entry or plea of guilty or nolo contendere to charges under the following statutes, or similar statutes of other jurisdictions: s. 787.04, relating to removing minors from the state or concealing minors contrary to court order; s. 794.011, relating to sexual battery; s. 798.02, relating to lewd and lascivious behavior; chapter 800, relating to lewdness and indecent exposure; s. 826.04, relating to incest; or chapter 827, relating to the abuse of children.
(b) The designation by a court as a sexual predator as defined in s. 775.21 or a substantially similar designation under laws of another jurisdiction.
(c) A report of abuse, abandonment, or neglect under ss. 415.101-415.113 or this chapter and the outcome of the investigation concerning such report.
The Tampa family law attorneys at Fernandez Law Group always represent the best interests of our clients and if you have any questions about divorce, visitation, custody, or Grandparent's rights in Florida, we suggest you
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Content authored by Frank Fernandez