This is a tough issue for Florida grandparents blocked from spending time with their grandchildren by one or both of the natural/adoptive parents of the grandchildren. The problem is that the U.S. Constitution and Florida’s Constitution are interpreted by the courts to defeat any legal right to grandparent visitation over the objection of one or both of the natural parents. Though the Florida Legislature passed a grandparent visitation rights statute, all but two of the original five grounds for granting court-ordered grandparent visitation rights have been found unconstitutional.
The current Florida statute governing grandparent visitation includes two grounds for grandparent visitation rights that, to date, are not declared unconstitutional by the Florida Supreme Court: (1) if the parents have divorced, or (2) if a parent has deserted a child. However, a Florida appellate court has already found the divorced parents’ grounds for grandparent visitation rights to be unconstitutional. Even though the Florida Supreme Court hasn’t found either of these statutory grounds to be unconstitutional, if one of the natural parents is objecting to the grandparent visitation, it’s a pretty sure bet that the same unconstitutional finding will follow.
But what if, for example, a relative has temporary custody of the grandchildren because the divorced natural parents are unfit to care for the children? And what happens then if the custodial relative won’t allow the grandparents to see the grandchildren? Or what if the grandchildren are in the care of a legal guardian because the parents have deserted or are unable to care for the children for other reasons, and the guardian objects to the grandparent visitation? What if the guardian or the temporary custodian has no objection to the grandparent visitation, but one of the natural parents does?
If the natural or adoptive parents are not the legal caretakers of the grandchildren, there may be a green light to seek court-ordered visitation with your grandchildren. A Florida appellate court has decided that guardians of children don’t enjoy the same constitutional protections from court-ordered grandparent visitation, even though the grandparent in that case didn’t even claim visitation rights under the grandparent visitation statute. It’s likely that a temporary custodian of the children would also lack the constitutional protections from unwanted grandparent visitation. However, if a natural parent objects to the grandparent visitation even though they are no longer the legal caretakers of the children, will constitutional protections apply?
If you want to give it a try, it’s important to consult with an experienced family law attorney before you proceed. If you are claiming grandparent visitation rights under the grandparent visitation statute, or just as being in the best interest of grandchildren under the care of a temporary custodian or a guardian, this is an issue that will require careful handling and possible appeals. It’s imperative that you hire an attorney with the knowledge and expertise to present your case in the trial court with an eye to ultimately winning your case before the Florida appellate courts.
