Category: Grandparent Rights

New Article on Grandparent Visitation

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.

The Wall

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.

 

British Grandparent Rights

A British grandmother who wanted to assert some grandparent rights for her grandchild, fought local authorities after a recommendation that the baby be put up for adoption. She won, and now the child is in her custody.

In Britain, the parents of the child were unable to look after the baby, and the paternal grandmother put herself forward to be the special guardian, a role similar to foster care.

The grandparent rights case, heard in Britain last month, raises questions about the challenges faced by families trying hold on to children as special guardians for their relatives’ children – mostly grandparents.

Florida Grandparent Visitation

I’ve written about grandparent rights to visitation several times. The U.S. Supreme Court, in Troxel v. Granville, held that the Due Process Clause protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.

So, as long as a parent is adequately caring for his or her child, there will normally be no reason for the state to inject itself into the private realm of the family. The basic presumption in Troxel is that fit parents act in the best interests of their children.

However, the Troxel court did not hold that the Due Process Clause requires a showing of harm or potential harm to the child as a condition to granting rights of visitation. That is a Florida law.

Instead, the U.S. Supreme Court left those decisions for the states to decide on a case-by-case basis.

It surprises many Floridians – because of the large percentage of grandparents here – but grandparent don’t have visitation rights here.

Grandparent rights to custody and time-sharing do not really exist in Florida without showing harm to the child; otherwise, it is deemed to violate parents’ privacy.

British Grandparent Battle

The grandparent rights case involved a professional who works with children, initially received what the judge described as “very positive and full assessments” about her suitability as a caregiver.

However, more than five months after care proceedings began it was followed by a second negative report who questioned her commitment. At this point, the social work team recommended that the baby instead be put up for adoption.

When the case came to court, the judge ordered that the grandmother should become the baby’s special guardian after all.

Describing the hearing, the judge said the grandmother had “expressed profound dissatisfaction about the way in which she had been assessed and treated”.

The protracted battle has meant the baby only recently joined the grandmother after a long stay in foster care.

The judge paid tribute to the grandmother as “an intelligent and courteous woman” who had “put herself out considerably to offer her grandchild the opportunity of being cared for within the natural family”.

The Buzzfeed article on grandparent rights is here.

 

Grandparent Visitation Rights. Yes, really.

Jessica and her mother-in-law used to have a great relationship. It ended when her mother-in-law moved in. Fights lead to grandparents being cut-out. Grandparent visitation rights don’t exist in Florida, but that is changing.

As the Chicago Tribune reports:

“Rules don’t apply to her. We don’t want her living with us anymore.”

It’s the little things. When Fromm throws her clothing into the washing machine, she’ll return to find it tossed on the floor. And when she has friends over, Fromm notices that her mother-in-law is eavesdropping on her conversations.

Grandparents are Becoming Essential

According to the Pew Research Center, there were 57 million Americans — or 18 percent of the population — living in multi-generational households in 2012, which is double what the number was in 1980.

Some are doing it for financial reasons, and others are doing it because they could use help raising children while both parents work. Regardless of the reasons, it’s very common for personality clashes and other issues to occur, but there are ways to make the transition smoother.

“Changing the basic family structure always has an impact on everyone’s relationships, no matter how simple or easy it may look before it happens; and no matter what the reason, when a couple moves in with one partner’s parents, or when a parent moves in with a couple, it is a change in family structure.”

Current Florida Law

I’ve written about grandparent visitation rights. The U.S. Supreme Court, in Troxel v. Granville, held that the Due Process Clause protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.

So, as long as a parent is adequately caring for his or her child, there will normally be no reason for the state to inject itself into the private realm of the family. The basic presumption in Troxel is that fit parents act in the best interests of their children.

However, the Troxel court did not hold that the Due Process Clause requires a showing of harm or potential harm to the child as a condition to grandparent visitation. That is a Florida law.

Instead, the U.S. Supreme Court left those decisions for the states to decide on a case-by-case basis.

It surprises many Floridians – because of the large percentage of grandparents here – but grandparent visitation rights don’t exist here.

Grandparent custody and time-sharing rights do not exist in Florida without showing harm to the child; otherwise, it is deemed to violate parents’ privacy.

Recent Florida Changes

Things could be changing for grandparent visitation rights. In 2015, the Florida Legislature passed a law allowing a grandparent of a minor child whose parents are deceased, missing, or in a persistent vegetative state, or other listed facts, to ask the court for visitation with the grandchild.

Last month, the Florida Supreme Court recently enforced an interstate custody decree which granted grandparent visitation rights, even though grandparent visitation rights with fit parents violated Florida law.

This year in the Florida Senate, there is a new bill introduced relating to grandparent visitation rights. The bill would authorize a grandparent of a minor child – who has exclusively cared for the minor child for at least 6 months – to petition the court for court-ordered visitation with the child under certain circumstances.

The bill would also require the courts to consider the totality of the circumstances, including a specified criterion, in its determination of substantial mental or emotional harm to the child, to better comply with the Florida Supreme Court’s case law.

The Chicago Tribune article is here.

Yes, Grandparent Visitation Rights in Florida

It’s been about 16 years since the U.S. Supreme Court decided its big grandparent visitation rights case. On this anniversary, there’s something new to celebrate in Florida.

I’ve written about grandparent rights to visitation several times. The U.S. Supreme Court, in Troxel v. Granville, held that the Due Process Clause protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.

So, as long as a parent is adequately caring for his or her child, there will normally be no reason for the state to inject itself into the private realm of the family. The basic presumption in Troxel is that fit parents act in the best interests of their children.

However, the Troxel court did not hold that the Due Process Clause requires a showing of harm or potential harm to the child as a condition to granting visitation. That is a Florida law.

Instead, the U.S. Supreme Court left those decisions for the states to decide on a case-by-case basis.

It surprises many Floridians – because of the large percentage of grandparents here – but grandparent don’t have visitation rights here.

Grandparent custody and time-sharing rights do not exist in Florida without showing harm to the child; otherwise, it is deemed to violate parents’ privacy.

I spoke about a case the Florida Supreme Court was considering at my presentation at the Florida Bar/AAML’s certification review course.

In the recent case, a Mother argued a Colorado order granting the paternal grandmother visitation rights was unconstitutional because granting grandparent visitation violates Florida Public Policy.

Last week the Florida Supreme Court enforced the limited grandparent visitation rights granted in the Colorado order. Why? Because Florida courts have to enforce any custody or visitation determination by a court of another State. The concept is called Full Faith and Credit.

Last week, the Florida Supreme Court held that Full Faith and Credit applies to grandparent visitation orders from another state. So, when a grandparent claims a right to visitation of a child, based on an order from another state, the order must be enforced.

To the extent that the federal, Full Faith and Credit concept conflicts with Florida public policy, federal law controls because of the Supremacy Clause of the United States Constitution.

The Florida Supreme Court opinion is here.

Grandparent Visitation & Millennials

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Grandparent Rights on Monday, June 6, 2016.

For the first time in modern history, young adults are more likely to live with a parent than a romantic partner. What does this mean for grandparent rights to timesharing and visitation?

The New York Times recently reported that millennials, who have been slower than previous generations to marry and set up their own households, reached that milestone in 2014.

32.1% lived in a parent’s home, compared with 31.6% who lived with a spouse or a partner.

The median ages for marrying are 27 and 29, and one in five adults older than 25 has never married. Pew projects that a quarter of this generation of young adults might never marry.

About 22% of young adults now live in a dormitory, or with a relative like a grandparent or a sibling – compared with 13% in 1960.

About 14% of young adults head their own households, some living with roommates or boarders, others alone or with their young children.

The issue of grandparent visitation rights comes up many times in Florida. As this recent Pew study shows, grandparents are increasingly playing a significant role in the lives of their grandchildren.

I wrote an article in the Florida Bar Journal about grandparent visitation rights, and the attempts by Florida law makers to serve this big part of our population.

Two Florida statutory grounds for awarding grandparent visitation have been ruled unconstitutional by the Florida Supreme Court. Confusingly, these two provisions remain in the statute.

The laws were held unconstitutional because compelling visitation with a grandparent based solely on the best interest of the child, without the showing harm to the child violates parents’ privacy.

Fifteen years ago, in Troxel v. Granville, grandparents asked to expand their visitation rights. The children’s mother had reduced the grandparents’ visitation to one afternoon a month.

The U.S. Supreme Court reasoned that the Due Process Clause protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.

So, as long as a parent is adequately caring for his or her child, there will normally be no reason for the state to inject itself into the private realm of the family. The basic presumption in Troxel is that fit parents act in the best interests of their children.

However, the Troxel court did not hold that the Due Process Clause requires a showing of harm or potential harm to the child as a condition to granting visitation. That is a Florida law.

Instead, the U.S. Supreme Court left those decisions for the states to decide on a case-by-case basis.

The New York Times article is here.

Grandparent Visitation Rights Update

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Grandparent Rights on Wednesday, February 3, 2016.

It’s been about 15 years since the U.S. Supreme Court decided the grandparent rights of visitation case Troxel. What is the status of grandparent visitation 15 years on?

In Troxel v. Granville, grandparents asked to expand their visitation rights. The children’s mother had reduced the grandparents’ visitation to one afternoon a month.

The U.S. Supreme Court reasoned that the Due Process Clause protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.

So, as long as a parent is adequately caring for his or her child, there will normally be no reason for the state to inject itself into the private realm of the family. The basic presumption in Troxel is that fit parents act in the best interests of their children.

However, the Troxel court did not hold that the Due Process Clause requires a showing of harm or potential harm to the child as a condition to granting visitation. That is a Florida law.

Instead, the U.S. Supreme Court left those decisions for the states to decide on a case-by-case basis.

I’ve written about grandparent visitation. Florida has its own constitution. The Florida Constitution contains an express right of privacy written into it:

Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein. This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law.

It surprises many Floridians – because of the large percentage of grandparents here – but grandparent don’t have visitation rights here. But grandparent visitation is alive and well in Indiana.

In this year’s Indiana Supreme Court case, a child’s maternal grandparents filed for visitation after their relationship with the child’s father became contentious.

Based on the opinion of mental health experts, the trial court ordered grandarent visitation totaling approximately 79-days per year. The Indiana Supreme Court affirmed the order.

Florida law is not like Indiana’s. Grandparent child custody and timesharing rights do not exist in Florida. without the showing harm to the child violates parents’ privacy.

With the Florida legislature in session, and new bills dealing with a parent’s right to delegate certain powers regarding the care and custody of the child, grandparent visitation may be an area to keep an eye on.

The Indiana Lawyer article is available here.

Grandparent Visitation Law Update

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Grandparent Rights on Wednesday, September 30, 2015.

It surprises many Floridians – because of the large percentage of grandparents here – but grandparent don’t have visitation rights. The Utah Supreme Court just ruled similarly. What happened in Utah?

The Utah Supreme Court held that grandparents seeking to override parents must present proof that a visitation order is narrowly tailored to advance a compelling governmental interest – such as protecting children against substantial harm.

A pair of grandparents in Utah were having a dispute with their former daughter-in-law over visitation with their granddaughter. The grandparents had acted in a parent-like role as caregivers.

But the Utah Supreme Court invalidated the order:

“Grandparent visitation orders must be limited to the exceptional case where the failure to override the parent’s wishes would cause substantial harm to the child.” The decision was unanimous.

Grandparents are increasingly playing a significant role in the lives of their grandchildren. But the interests of grandparents, no matter how well-meaning, do not trump the rights of parents to determine what’s best for their children.

Florida law is very similar to Utah’s recent ruling. Grandparent child custody and timesharing rights do not exist in Florida. But as American parents deal with both economic recession and family upheaval, grandparents have stepped in to help.

According to a recent survey, grandparents were the main caregivers for more than 3 million children in 2011 – a 20% increase from 2000, the Pew Research Center found.

I wrote an article in the Florida Bar Journal about grandparent visitation rights, and the attempts by Florida lawmakers to serve this big part of our population.

Two current statutory grounds for awarding grandparent visitation have been ruled unconstitutional by the Florida Supreme Court. Confusingly, these two provisions remain in the statute.

The laws were unconstitutional because compelling visitation with a grandparent based solely on the best interest of the child, without the showing harm to the child violates parents’ privacy.

The Utah Supreme Court case background is available here.

Big Grandparent Visitation Rights Update

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Grandparent Rights on Monday, June 29, 2015.

Grandparents play an increasingly large role in raising grandchildren. Yet grandparent visitation rights don’t really exist in Florida. Will the new law passed this June change things? Starting July 1st we will find out.

Grandparent child custody and timesharing rights do not exist in Florida. But as American parents deal with both economic recession and family upheaval, grandparents have stepped in to help.

According to a recent survey, grandparents were the main caregivers for more than 3 million children in 2011 – a 20% increase from 2000, the Pew Research Center found.

I wrote an article in the Florida Bar Journal about grandparent visitation rights, and the attempts by Florida law makers to serve this big part of our population.

Two current statutory grounds for awarding grandparent visitation have been ruled unconstitutional by the Florida Supreme Court. Confusingly, these two provisions remain in the statute.

The laws were unconstitutional because compelling visitation with a grandparent based solely on the best interest of the child, without the showing harm to the child violates parents’ privacy.

Privacy is a fundamental right, and any statute that infringes on that right is subject to the “compelling state interest” test – the highest standard of review.

Florida is taking a new stab at having some form of grandparent visitation rights. House Bill 149 passed the House and Senate, and amends laws related to grandparent visitation.

The bill creates a new limited grandparent visitation statute:

(1) It allows a grandparent of a minor child whose parents are deceased, missing, or in a persistent vegetative state to petition the court for visitation.

(2) If there are two parents, one of whom is deceased, missing, or in a persistent vegetative state and the other has been convicted of a felony or certain violent crimes.

Grandparent must make a showing of parental unfitness or significant harm to the child, and also requires that grandparents try mediation and, if necessary, the court may appoint a guardian ad litem for the child.

Several factors are listed for the court to consider, including the previous relationship the grandparent had with the child, the findings of a guardian ad litem, the potential disruption to the family, the consistency of values between the grandparent and the parent, and the reasons visitation ended.

The bill limits the number of times a grandparent can file for visitation, absent a real, substantial and unanticipated change of circumstances.

The bill was approved by the Governor on June 11, 2015, and will become effective on July 1, 2015.

Terrorists & Grandparent Custody Rights

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Grandparent Rights on Thursday, May 21, 2015.

Zachary Chesser threatened “South Park” creators for insulting Muhammad. Then he tried going to Somalia to join Al-Shabab. He brought his son to the airport to avoid suspicion. Does he, or the grandmother, have custody rights?

Zach’s plan didn’t work by the way. He was stopped at the airport. He was arrested and sentenced to 25 years in prison for attempting to support terrorists. He also pleaded guilty to threatening violence online.

Zach now lives in the supermax prison in Florence, Colorado. His wife, a Ugandan diplomat’s daughter named Proscovia Nzabanita, had to leave the United States after pleading guilty to lying about Zach’s plans.

This case raises grandparent custody rights because the fate of Zach’s 5-year old son Talhah is the center of a dispute being heard in a federal appellate court this week.

Zach is suing, Barbara Chesser, his own mother and a lawyer in the Office of the Attorney General, and her partner, and the FBI for money damages over how she learned of his plot to flee the U.S. with Talhah.

He alleges that FBI agents interfered with his parental rights by conspiring with his mother and her partner to ensure that Talhah could not travel to Jordan to live with his wife.

Talhah is being raised by his grandmother in the U.S. The grandmother filed for custody while her son Zach was behind bars waiting trial, and the mother, Nzabanita, was facing deportation. I’ve written about grandparent visitation before.

The Judge dismissed Zach’s lawsuit because there is no expectation of privacy for prison conversations, and no reason to object when the FBI disclosed the conversation to his grandmother. Zach appealed.

Virginia, where the custody case arose, allows grandparents to win custody over parents in certain circumstances. In contrast, grandparent rights to visit their grandchildren over the objections of fit parents do not exist in Florida.

But, Zach’s case is special given that a judge declared Zach and his wife unfit. If this case arose in Florida, there is a good chance that the grandmother could request some form of custodial rights.

Some facts about Zach may make any judge question his fitness. He allegedly converted to Islam after becoming infatuated with a girl. His father said Zach began wearing loin cloth in place of underwear. He threatened to kill South Park creators over a cartoon, involved his son in his attempt to join al Shabab – a group responsible for killing 148 students in Kenya.

On those facts, with no natural parents available to raise Talhah, even Florida would find some form of custodial rights available to the grandmother.

The Fox News report on the case is here.

Grandparent Visitation: New Health Study

On behalf of Ronald H. Kauffman, P.A. posted in Grandparent Rights on Thursday, April 24, 2014.

Grandparent rights to visitation are in the news. A new study shows the effects of grandparent child custody on improving cognition. Is improving the health and well-being of a grandparent a valid concern in the grandparent visitation debate?

A recent study out of Australia found that the amount of time spent minding grandchildren predicted differences in cognitive performance. The study revealed:

The highest cognitive scores for most tests were seen in participants who minded grandchildren for 1 day a week. It was also a significant positive predictor of immediate recall performance

However, minding grandchildren for 5 days or more per week predicted lower performance.

The study suggest that spending 1 day a week minding grandchildren was optimal for cognition, but minding grandchildren for 5 days or more per week may have led to lower working memory performance and processing speed.

These results indicate that highly frequent grandparent visitation predicts lower cognitive performance.

My article, Bleeding Grandparent Visitation Rights is available for download at the Florida Bar’s website. The article examined the history of grandparent visitation rights in Florida, the U.S. Supreme Court’s decision in Troxel v. Granville, 530 U.S. 57 (2000) and the recently enacted Florida Statute §61.13002(2) in light of Florida and U.S. Supreme Court cases.

Grandparent rights of visitation in Florida has been a highly litigated and bitter fight. This new study sheds a little more light on the debate. Namely, should the health and cognitive impact on grandparent visitation be of concern to a court or the legislature?

An Abstract of the study can be found here.