Grandparent Visitation Lawyer Assisting FL Residents for Nearly 20 Years
Grandparent visitation rights in Florida are at odds with parents’ fundamental right to privacy. The only way that the state can interfere with one’s fundamental rights is if the state has a “compelling interest.” The Florida Supreme Court has held prior grandparent visitation statutes in Florida to be unconstitutional.
In Beagle v. Beagle, 678 So. 2d 1271 (Fla. 1996), the Florida Supreme Court quashed the First District’s Beagle opinion. It also remanded with directions to affirm the trial court’s dismissal of the grandparents’ petition citing the parents’ fundamental right to privacy. The Florida Supreme Court explained that parenting has protections of the right to privacy, a fundamental right. Thus, any intrusion upon that right must be justified by a compelling state interest. A Jacksonville grandparent visitation attorney will be here for you in this process.
Legal Interest Visitation
The Florida Supreme Court reasoned that the challenged paragraph in Beagle does not require the state to demonstrate harm to the child prior to the award of grandparental visitation rights. Based upon the privacy provision in the Florida Constitution, the Florida Supreme Court held that the state may not intrude upon the parents’ fundamental right to raise their children. That is, except in cases where the parent threatens the child with harm. The Florida Supreme Court held that in the absence of an explicit requirement of harm or detriment to the child a grandparent visitation provision is facially flawed.
The Florida Supreme Court in Beagle did not render grandparent visitation unconstitutional. It only answered the narrow question of whether the state had shown a compelling state interest in imposing grandparental visitation rights on an intact family over the objection of a parent. The Beagle court concluded there was no compelling state interest — unless the state is acting to prevent demonstrable harm to a child. Request a free consultation with the Jacksonville Grandparent Visitation Attorney at our firm to find out more.
CS/CS/HB 149 – Rights of Grandparents
The Florida Legislature approved HB 149. It subsequently headed to the Governor for the final decision, who approved it on 6/11/2015. HB 149 granted grandparents and great-grandparents rights to request visitation with their grandchildren when a dependency case is in progress.
Under HB 149, a grandparent or a minor child whose parents are deceased, missing, or in a permanent vegetative state and whose other parent has been convicted of an offense of violence may petition the court for visitation with the grandchild.
After final hearing, the court may award reasonable visitation to the grandparent with respect to the minor child if the court finds by clear and convincing evidence that a parent is unfit or that there is danger of significant harm to the child, that visitation is in the best interest of the minor child, and that the visitation will not materially harm the parent-child relationship. To see if you meet these strict standards you should talk to an experienced Jacksonville Grandparent Visitation Attorney.
Sometimes grandparents can fall within the scope of the “temporary custody of minor children by extended family” statute. In this case the standards may be easier to meet and the range of rights is broader. There can be no doubt that grandparents have traditionally afforded children another layer of love and nurturing. This, in turn, enhances their development.
Grandparents’ right to petition for visitation under the law is unique to the circumstances of each case. And it is thwarted by the parents’ fundamental rights to raise their own children and to privacy. If you have questions about your rights you should consult with an experienced Jacksonville Grandparent Visitation Attorney.
The Parent of My Grandchildren Won’t Let Me See Them. What Should I Do?
There are cases in which one parent may attempt to deny access, not only to the other parent, but the parent’s parents as well. This is an unfortunate situation that many grandparents find themselves in. It is especially true when one parent is dead, incarcerated, or otherwise institutionalized. State law limits your options. You can petition the court for visitation rights. However, the law requires the court to consider the situation only in the best interests of the child.
The court, for instance, might be hesitant to deny access to a grandparent who has a strong ongoing relationship with a child. Let’s say a grandparent is responsible for taking care of a child while one or both parents are at work. The court might be hesitant to break that relationship up. On the other hand, the parent with sole custody of the child may also want to continue that relationship.
This puts many grandparents in the awkward position. They need to file visitation rights when there’s little chance of them being awarded visitation rights. On the other hand, there are situations in which a grandparent may be unfairly excluded from the family. This is why the laws that do exist are on the books today.
Approaches to Grandparent Visitation and Florida Law
In practical terms, the court will always consider the best interests of the child when making decisions concerning custody, access, or visitation. That being said, the court generally does not factor grandparents into the equation when there is at least one parent who can provide full and primary custody. On the other hand, grandparents can raise objections to being shut out of a child’s life if both parents lose access to the child.
Factors that the court will consider include:
- Ability of the grandparents to encourage the relationship between the children and their custodial parent;
- Length and importance of the grandparent’s relationship to the child;
- Mental and physical health of the grandparent; and
- Child’s own wishes to see the grandparent.
Each of these factors exists to ensure that the child’s best interests the most important metric when considering arrangements for a child following a divorce.
Limitations to the Aforementioned Law
Many believe that the aforementioned law has little impact on real-world scenarios and that grandparents don’t have any more access to children than they did under the 2015 law. This is largely because the 2015 statute only allowed for visitation rights under very strict circumstances. These included situations in which:
- Both parents are either dead or incapacitated; or
- One parent is dead or incapacitated and the other parent has been convicted of a felony or other violent crime.
In both of those scenarios, the parents themselves will have limited or no access to the children. So, unless both parents are dead, in a vegetative state, or institutionalized in a psychiatric ward or one of them is and the other parent is a violent felon, grandparents have no more rights than they had before the law was enacted?
How Grandparents Can Gain Rights in Florida
If both parents are dead or incapacitated, grandparents usually make good candidates for custody. They will need to show that they are mentally and physically capable of raising the children, but if living with their grandparents is the best case scenario for the child, then the courts will give custody to the grandparents.
In some cases, however, only one parent is dead or incapacitated. In that case, the grandparents may claim in court that the other parent is unfit for the purposes of raising a child. The burden of proof will be on the grandparents to prove this. If the grandparents lose, they will be responsible for paying the parent’s attorney and court fees.
Even in cases where the parent may be unfit due to a violent crime, the court may only consider withdrawing parental rights if the parent is deemed to be a threat to the child. Grandparents may present evidence of current drug abuse as a reason.
Lastly, this is a petition only for visitation — not custody.
Your Jacksonville Grandparent Visitation Attorney Services in Florida
If you or anyone you know needs help with grandparent visitation rights, you should immediately consult with a family law attorney who specializes in marital and family law so that they can properly evaluate your case. You should hire an attorney who has extensive experience litigating grandparent custody and visitation cases. For questions about your rights, contact your Jacksonville Grandparent Visitation Attorney today at (904) 360-6100.
Remember: for Family Law, choose Family Values.