Unbowed, Unbent, Unbroken: an Update on Grandparent Visitation
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FAMILY LAW by Ronald H. Kauffman Unbowed, Unbent, Unbroken: An Update on Grandparent Visitation he struggle for grandparent rights to grandparents — even over broke all the chains on grandpar- visitation rights in Florida is the objections of fit parents. ent visitation rights by adding F.S. a game of thrones between In 1978, the legislature made §752.01(1)(e). That section allowed the three branches of govern- two changes to the Florida Statutes courts to award reasonable visitation T1 ment. The Florida Supreme Court that granted enforceable rights to rights to grandparents when it is in has stricken all previous attempts to visit their grandchildren. First, F.S. the best interest of the minor child; legislate grandparent visitation as §61.13(2)(b) permitted courts to award even if the child is living with both unconstitutional. Yet, the legislature grandparents visitation rights of a parents who are still married to each and the governor keep passing new minor child if it is deemed by the court other.14 laws to enforce grandparent visitation to be in the child’s best interest.8 rights for Florida voters. Later, F.S. §61.08 was amended to The Wall After years of battles between gov- give courts, which are competent to de- The Florida Supreme Court built a ernors, legislators, and judges, Florida cide child custody matters, jurisdiction massive wall blocking Florida grand- grandparent visitation rights have to award the grandparents of a minor parent visitation rights in Beagle v. come to resemble Winterfell. Maybe, child visitation rights upon the death Beagle, 678 So. 2d 1271 (Fla. 1996). “summer is coming.” In 2012, the gov- of or desertion by one of the minor The facts in Beagle are simple. The ernor signed into law a statute indi- child’s parents if a court finds it to be grandparents, relying on the new F.S. rectly granting grandparent visitation in the minor child’s best interest.9 §752.01(1)(e), filed an action for visita- rights for deployed military parents.2 In 1984, the legislature enacted tion with their granddaughter. In 2015, the legislature repealed Ch. 752, “Grandparental Visitation The parents moved to dismiss the unconstitutional language in earlier Rights,” which included a procedure petition. At the time of the filing of versions of the grandparent visitation for granting visitation rights to grand- the petition, the parents were living statute and created a new limited parents in three situations: 1) when together with the child as an intact grandparent visitation statute.3 This one or both parents of the child are family. The trial court dismissed the year, the Florida Supreme Court deceased; 2) when the marriage of grandparents’ petition, finding the enforced an out-of-state grandparent the child’s parents has been dissolved; statute violated the parents’ right visitation order despite the lack of any or 3) when a parent of the child has to privacy, and the grandparents ap- showing of harm to a child.4 deserted the child. 10 pealed. This article briefly reviews the his- In 1990, the constitutionality of Ch. The First District, which six years tory of grandparent visitation rights 752 was challenged in Sketo v. Brown, earlier had decided Sketo, reversed.15 in Florida and provides an update 559 So. 2d 381 (Fla. 1st DCA 1990). In In Sketo, the panel found the statute on those rights through the Florida Sketo, a parent argued F.S. §752.01 constitutional to the extent it provided Supreme Court’s recent decision in violated her constitutional right to grandparent visitation rights in the Ledoux-Nottingham v. Downs, 210 So. privacy. 11 The First District upheld event of a death of a parent, based 3d 1217 (Fla. 2017), earlier this year.5 the statute, finding that Florida has a on a best interest of the child test. In sufficiently compelling interest in the Beagle, the First District applied the The Gift welfare of children in a family in which same best-interest analysis to the In common law, there was never a a parent died, and it can provide for new F.S. §752.01(1)(e), and upheld the legal right to nonparent visitation, and the continuation of relations between statute. Florida has clung to that tradition.6 A children and their grandparents so The Florida Supreme Court quashed very high percentage of elderly voters long as it is in the children’s best inter- the First District’s Beagle opinion, and reside in Florida.7 Not surprisingly, est.12 Grandparent visitation had won remanded with directions to affirm the Florida politicians have historically its first major battle.13 trial court. The Florida Supreme Court tried to provide enforceable visitation Finally, in 1993, the legislature explained that parenting is protected 44 THE FLORIDA BAR JOURNAL/JANUARY 2018 by the right to privacy, a fundamental high court — relying on the Florida unconstitutional on its face because right, and any intrusion upon that Constitution’s explicit right of privacy it equated grandparents with natural right must be justified by a compelling — ruled that the statute infringed on parents and permitted courts to deter- state interest. this fundamental right, and had to mine custody between the two using In Florida, that compelling state survive the highest level of scrutiny.18 only a best-interest-of-the-child test.20 interest was harm to the child: “[W]e The Florida Supreme Court held hold that the [s]tate may not intrude that subsection (1)(e) did not survive The High Sparrow upon the parents’ fundamental right the stringent standard of the compel- In Troxel v. Granville, 530 U.S. 57 to raise their children except in cases ling state interest test because it did (2000), the grandparents petitioned where the child is threatened with not require a showing of “demon- to expand their visitation rights with harm.”16 strable harm to the child before the their deceased son’s daughters. The However, the Florida Supreme [s]tate’s intrusion upon the parent’s children’s mother had reduced the Court did not hold that all grandpar- fundamental rights.”19 grandparents’ visitation to one after- ent visitation was unconstitutional. The Florida Supreme Court held noon a month, after years in which the The Beagle panel only answered a that F.S. §61.13(7) was also unconsti- children’s father brought them alter- narrow question: Did the state show a tutional. F.S. §61.13(7), which autho- nating weekends. The trial judge, after compelling state interest in imposing rized custody — as opposed to visita- waxing nostalgically about his own grandparental visitation sufficient to tion — for grandparents if a child is childhood visits to his grandparents, overcome the fundamental rights of “actually residing with a grandparent not surprisingly ordered increased parents? The Beagle court concluded in a stable relationship.” visitation.21 there was no compelling state interest, In Richardson v. Richardson, 766 The Washington Supreme Court unless the state is acting to prevent So. 2d 1036 (Fla. 2000), the Florida held that the statute unconstitution- demonstrable harm to a child.17 Supreme Court reaffirmed that in a ally interfered with the fundamental Two years after Beagle, F.S. dispute between a fit parent and a right of parents, finding: “Short of §752.01(1), which provided for grand- third party, there must be a showing preventing harm to the child, the parent visitation rights, met the same of detrimental harm to the child in standard of ‘best interest of the child’ grisly fate as House Stark. In Von Eiff order for custody to be denied to the is insufficient to serve as a compelling v. Azicri, 720 So. 2d 510 (Fla. 1998), the parent. The court found F.S. §61.13(7) state interest overruling a parent’s This quote is taken from a recent New York court decision. 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The Supreme right in Florida’s Constitution is petition for visitation if there are two Court reasoned that the 14th Amend- much broader in scope than that of parents, one of whom is deceased, ment’s due process clause protects the U.S. Constitution.27 Accordingly, missing, or in a persistent vegetative the fundamental right of parents to the Florida Supreme Court has deter- state and the other has been convicted make decisions concerning the care, mined that the state may not intrude of a felony or an offense of violence custody, and control of their children. upon a parent’s right to raise his or her evincing behavior that poses a sub- The Troxel Court then affirmed the children unless the child is threatened stantial risk of harm to the child. presumption that fit parents act in with harm.28 Under the new statute, the peti- the best interests of their children.