The holiday season is in full swing. In the spirit of shameless self-promotion – and if you are looking for a last-minute gift for the family law reader in your life – what could better than my new, Game of Thrones themed article, “Unbowed, Unbent, Unbroken: An Update on Grandparent Visitation”?
The Game of Thrones
The struggle for grandparent visitation rights in Florida has become a game of thrones between the three branches of Florida government.
The Florida Supreme Court has stricken all previous attempts to legislate grandparent visitation as unconstitutional. Yet, the legislature and the governor keep passing new laws to enforce grandparent visitation rights for Florida voters.
I’ve written about grandparent visitation rights before. However, this new article not only reviews the history of grandparent visitation rights in Florida, but it provides an update on those rights through the Florida Supreme Court’s recent decision earlier this year.
In early common law, there was never a right to visitation by non-parents, and Florida has clung to that tradition. That is ironic, as a a lot of elderly voters reside in Florida, and politicians have been trying to create visitation rights to grandparent voters here.
Beginning in 1978, the Florida legislature started making changes to the Florida Statutes that granted enforceable rights to visit their grandchildren.
The Florida Supreme Court built a massive wall blocking Florida grandparent visitation rights, explaining that parenting is protected by the right to privacy, a fundamental right, and any intrusion upon that right must be justified by a compelling state interest.
In Florida, that compelling state interest was harm to the child: “[W]e hold that the [s]tate may not intrude upon the parents’ fundamental right to raise their children except in cases where the child is threatened with harm.”
The High Sparrow
The U.S. Supreme Court, has also commented, reasoning that the 14th Amendment’s due process clause protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.
The U.S. Supreme Court did not hold that the due process clause requires a showing of harm or potential harm to the child as a condition for granting visitation. Instead, the U.S. Supreme Court left those decisions for the states to decide because:
much state-court adjudication in this context occurs on a case-by-case basis.
There have been a few legislative attempts to grant some rights of visitation for grandparents in Florida, but they have been very modest.
Despite these recent recent legislative victories for grandparent visitation rights in Florida, a recurring problem has also been what to do about out-of-state grandparent visitation court orders.
Florida courts have been unwilling to enforce them until recently.
Dances with Dragons
This year, the Florida Supreme Court held that under the federal Parental Kidnapping Prevention Act any custody determination or visitation determination – including grandparent rights – are protected and enforceable under the PKPA.
And, to the extent that the PKPA conflicts with Florida law, the PKPA controls under the supremacy clause of the U.S. Constitution because it is a federal law.
The Florida Bar Journal article is available here.