Grandparents' Rights in Florida

Traditionally Restrictive State Becomes Even Tougher on Visitation Seekers

Grandfather and Grandson in Florida
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Florida, home to millions of grandparents, is ironically one of the toughest states with regard to winning grandparent visitation, and its status was not significantly altered by changes in the law effective July 1, 2015.

The new law allows suits for visitation only in an extremely narrow set of circumstances. Grandparents can sue for visitation if the parents of their grandchild are deceased, missing or in a persistent vegetative state. An additional provision allows grandparents to file if one parent is deceased, missing or in a persistent 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." These provisions obviously apply only to a small percentage of potential cases. Even under these conditions, Florida grandparents must still prove parental unfitness or must show "significant harm to the child."

The previous law allows grandparents to sue in cases of divorce or desertion, or when a child has been born out of wedlock. Compare Florida Law 752.011 2015 version to the 2013 version of the law.

In Florida, grandparent visitation law has been ineffectual for some time, due to that state's stance on privacy and due to the rulings in several important cases.

While in many states the 2000 Supreme Court case of Troxel v. Granville made visitation with grandchildren harder to obtain, in Florida this process was already well underway.

The Primacy of Privacy in Florida

Florida is aggressive in statutorily protecting the privacy rights of its citizens, and the courts have repeatedly interpreted requests for visitation from grandparents as assaults on parental privacy.

In 1980 a privacy amendment was added to Florida's constitution. It 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." In the 1996 case of Beagle v. Beagle, the court decided that the state could not intervene to award grandparent visitation over the protests of parents in an intact family unless failing to award visitation would be detrimental to the child — the so-called "harm standard." The court held that this high standard was necessary to keep the state from intruding on the private lives of its citizens. 

More Critical Cases

A series of decisions in Florida extended the same privacy protection to parents not in intact families.

In a 1998 case, Von Eiff v. Azicri, the mother was deceased, and the father had remarried and had stopped the parents of the deceased from visiting. The court applied the same standard as had been applied in Beagle v. Beagle, ruling that to intervene would be to violate parental privacy. The court declared unconstitutional that part of the Florida statute that gives grandparents the right to sue for visitation in the case of a deceased parent. The court ruled that it is wrong to differentiate between "the fundamental rights of privacy of a natural parent in an intact family and the fundamental rights of privacy of a widowed parent.” In addition, the court stated that by remarrying, the surviving parent had created an intact family, which had every right to deny visitation.

In the 1999 case of Lonon v. Ferrell, an appellate court found that a divorced parent also has the same constitutional right to privacy as a married or widowed parent, whether or not the parent has remarried. In the 2000 case of Saul v. Brunetti, the Florida Supreme Court ruled that the parent of a child born out of wedlock has the same rights. 

Best Interest Factors

For those grandparents who do have standing to sue for visitation, the law instructs the courts to consider a lengthy list of factors in determining the best interests of the child. These factors include the willingness of the grandparent or grandparents to encourage a close relationship between the child and the parent or parents, the length and quality of the prior relationship between the child and the grandparent, the child's preference when he or she is old enough to express it, the mental and physical health of the child, the mental and physical health of the grandparent or grandparents and any other relevant factors. In addition, the court should consider whether the grandparents had established "ongoing personal contact" with the grandchild before the parent's death, disappearance or the onset of the persistent vegetative state.

In addition, the court must consider whether visitation with the grandparent would do "material harm" to the parent-child relationship.

Great-grandparents are considered to have the same rights as grandparents. Adoption terminates grandparent visitation rights unless a stepparent adopts the child.

Due to the complexities of case law, grandparents acting as their own attorneys will have their work cut out for them.

This report from the Florida Senate may also be helpful, although it does not cover the latest changes.