The United States Supreme Court has ruled numerous times that the liberty of parents to direct the upbringing, education, and care of their children is a fundamental right. Cases in Florida have recognized this notion and cite that it is the recognized the ultimate right of parents to make decisions concerning the care, custody, and control of their children. The basis for these rulings is due to the state’s emphasis on the parents’ right to privacy.
However, Florida recently enacted Florida Statute chapter 752 which permits grandparents and great-grandparents visitation rights under very limited circumstances. Under F.S. 752.011 (2015), a grandparent of a minor child who has either both parents deceased, missing, or in a persistent vegetative state, or whose one parent is deceased, missing, or in a persistent vegetative state and whose 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, may petition the court for court-ordered visitation with the grandchild under this section.
Upon the filing of a petition by a grandparent for visitation, the court shall hold a preliminary hearing to determine whether the petitioner has made a prima facie showing of parental unfitness or significant harm to the child. Absent such a showing, the court shall dismiss the petition and may award reasonable attorney fees and costs to be paid by the petitioner to the respondent.
If the court finds that there is prima facie evidence that a parent is unfit or that there is significant harm to the child, the court may appoint a guardian ad litem and shall refer the matter to family mediation as provided in s. 752.015. If family mediation does not successfully resolve the issue of grandparent visitation, the court shall proceed with a final hearing.
After conducting a final hearing on the issue of visitation, 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 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.
The constitutional right to raise a child without interference from the State or any person is very well protected in Florida. Courts are reluctant to interfere with the rights of parents to decide who can see their children. Florida remains one of the most restrictive states concerning grandparent visitation rights but as time goes on the legislature does seem to move towards a direction of affording grandparents visitation rights in extremely limited circumstances.
John V. Moore, Esquire
Morgan & Barbary, PA,
Greater Melbourne, Florida and Brevard County,