When I last wrote about grandparent visitation rights in Florida, the Florida appellate courts had declared the majority of the then-existing grandparent visitation statute unconstitutional. In 2015, the Florida Legislature revisited the issue and passed a new version of Chapter 752 Grandparent Visitation Rights. The new statute applies to only a relatively small subset of grandparents, but does expand the statutory definition of grandparent to include a great-grandparent.
Chapter 752 allows a grandparent/great-grandparent to file a petition seeking visitation with minor grandchildren under only three circumstances —- when the parents are:
(1) deceased, (2) missing (for at least 90 days), or (3) in a persistent vegetative state.
The petition may also be filed if only one parent meets one of the above criteria, but only if the other parent has been convicted of a felony or an offense of violence evincing behavior posing a substantial threat of harm to the minor child’s health or welfare.
The procedure under Chapter 752 is pretty simple. After the grandparent’s petition is filed, a preliminary hearing is held for the court to determine whether the grandparent made a prima facie showing of parental unfitness or significant harm to the child. If this prima facie showing is not made, the petition is dismissed and the court may award reasonable attorneys fees and costs to be paid by the grandparent to the party opposing the petition.
If the court finds that there is prima facie evidence of a parent’s unfitness or that there is significant harm to the child, the court may appoint a guardian ad litem and refer the matter to family mediation. If family mediation does not successfully resolve the case, the court holds a final hearing. After the final hearing, the grandparent may be awarded reasonable visitation with the minor child if the court finds by clear and convincing evidence that:
1. a parent is unfit or that there is significant harm to the child,
2. that visitation is in the best interests of the minor child, and
3. that the visitation will not materially harm the parent-child relationship.
In reaching this determination, Chapter 752 sets out 13 statutory factors the court must consider in assessing the best interests of the minor child under the totality of the circumstances affecting the mental and emotional well-being of the minor child. Nine more statutory factors related to assessing the material harm to the parent-child relationship are set forth for consideration by the court under the totality of the circumstances affecting the parent-child relationship.
If actions under Chapter 752 and s. 61.13, Fla. Stat. are pending at the same time, consolidation is strongly encouraged by Chapter 752. Interestingly, Chapter 752 limits grandparents to filing a single petition for visitation under the statute during any 2-year period, except on good cause shown that the minor child is suffering, or may suffer, significant and demonstrable mental or emotional harm caused by a parental decision to deny visitation between a minor child and the grandparent, which was not known to the grandparent at the time of filing an earlier action.
The statute also applies to out-of-state judgments awarding grandparent visitation via the specific application of section II of Chapter 61. Finally, Chapter 752 allows for modification of a grandparent visitation order upon a showing of a substantial change of circumstances and that modification of visitation is in the best interests of the minor child.
To date, no Florida appellate court has ruled on either the statute’s constitutionality or its application. This absence of guiding appellate decisions on the new statute leaves the trial courts essentially on their own in interpreting and applying the statute. Any decision under this untested new statute is likely to be appealed by the losing party.
See my video explaining the statute here.
This makes it very important that you hire an attorney with the knowledge and experience to present your case in the trial court with an eye to ultimately winning your case before the Florida appellate courts. Jeanne Coleman is a highly experienced family law attorney, having practiced family law litigation for over twenty-five years in the Tampa Bay community. She offers a free 20-minute consultation as well as legal representation in all aspects of family law, dependency matters, and social security disability. Contact her office today at 813-253-2820.