On behalf of Ronald H. Kauffman, P.A. posted in Timesharing/Visitation on Thursday, November 8, 2012.

Whether or not a grandparent can file a court action for visitation or child custody with their grandchildren has been a closely watched issue in every state in the country. You should know that different states have different standards for allowing grandparent visitation, and that the law is still developing.

Under current case law in Florida, grandparents can be denied visitation with their grandchild by the child’s parents. This is true even if they had what most people would consider a classic grandparent-grandchild relationship; one involving regular visits. Many grandparents complain that they are treated as little better than strangers. This is a little ironic, as Florida has one of the largest populations of the elderly, and has by far the highest proportion of elderly citizens.

In 2000, the United States Supreme Court rendered an opinion to settle the issue for the entire country in the case of Troxel v. Granville. In Troxel the U.S. Supreme Court decided that parents have a fundamental liberty interest in the care, custody, and control of their children, and that a fit parent acts in the best interests of their children. However, the court did not define the precise scope of the parental due process right, the U.S. Supreme Court itself was divided on the issue, and left certain decisions for each U.S. state to decide for themselves.

Kentucky just decided. At the end of October, and in an opinion so new it’s not even published in the official reporter yet, the Supreme Court of Kentucky ruled:

The constitutional presumption that a fit parent acts in the child’s best interest is the starting point for a trial court’s analysis. The grandparent petitioning for visitation must rebut this presumption with clear and convincing evidence that visitation with the grandparent is in the child’s best interest. In other words, the grandparent must show that the fit parent is clearly mistaken in the belief that grandparent visitation is not in the child’s best interest. If the grandparent fails to present such evidence to the court, then parental opposition alone is sufficient to deny the grandparent visitation. A trial court can look at several factors to determine whether visitation is clearly in the child’s best interest.

This is a very different standard than what grandparents in Florida have. Kentucky authorizes grandparent visitation under a basic, best interest of the child standard. Florida adheres to a tougher standard, which requires showing of a compelling state interest to allow grandparent visitation rights over the objections of fit parents. In other word, grandparents have to show some of evidence of harm to the child as a basis for awarding grandparent visitation

On behalf of Ronald H. Kauffman, P.A. posted in Timesharing/Visitation on Monday, October 29, 2012.

In order to educate the public, and shamelessly promote myself, I wanted to mention that my latest article, “Bleeding Grandparent Visitation Rights” is now available for download at the Florida Bar’s website. The article was printed in the September/October 2012 issue of the Florida Bar Journal. Here’s a brief abstract:

Grandparent rights to visit their grandchildren over the objections of fit parents do not exist in Florida . . . or so we thought. Floridians who are activated, deployed, or temporarily assigned to military service can now designate to grandparents their timesharing rights over the objections of a fit parent. The article briefly examines the history of grandparent visitation rights in Florida, the U.S. Supreme Court’s decision inTroxel v. Granville, 530 U.S. 57, 97 (2000) and the recently enacted Florida Statute §61.13002(2) in light of Florida and U.S. Supreme Court cases.

Although the statute may not pass constitutional muster, Florida may have found constitutional ways to promote grandparent visitation. For example, Chapter 751 authorizes concurrent custody to grandparents with custody, and voters adopted the “Granny Flats” amendment to the Florida Constitution, which provides tax incentives for constructing living quarters for grandparents.

FYI, the title is derived from the 19th Century Kansas border wars (the statute in question impacts military divorces) the pain associated with grandparent visitation cases, and how grandparent child custody have historically spread into family law.

Grandparent visitation rights are an especially sensitive topic in the very emotional area of marital and family law. Hopefully, the article answers some questions many of you may have about grandparent visitation rights in Florida.

On behalf of Ronald H. Kauffman, P.A. posted in Timesharing/Visitation on Thursday, August 23, 2012.

It is tough sledding for grandparent child custody. On Monday Reuters reported:

Here’s a sad scenario: Grandma and Grandpa pay for camp, shoes and college funds. But something goes awry; the kids’ parents decide to split, and next thing you know it’s Grandma and Grandpa who are out in the cold, writing checks but missing their grandchildren.

Think that couldn’t happen? There are at least two trends that point to more of the above. Grandparents are helping their progeny more than ever; the AARP reported that a quarter spent more than a $1,000 a year on their grandkids, with 37 percent saying that they helped cover daily living costs.

Grandparents’ rights to see and spend time with their grandchildren has become more difficult to litigate since the Florida Supreme Court’s ruling in 1996, Beagle v. Beagle, which struck down a Florida Statute that allowed courts to order visitation rights for grandparents if they would be in the child’s “best interest.”

That is too bad, because grandparents help out a lot. Better yet, tax laws allow gifts of $13,500 a year from one individual to another before gift tax limits start to kick in. But be careful. Judges differ about how to evaluate regular financial gifts from grandparents. A judge could count regular gifts as part of a parent’s income, which can impact child support calculations and even alimony.

As the article goes on to note, parents can get greedy too.

“I’ve seen parents say ‘it’ll be a $1,000 a visit’ and I’ve had grandparents pay it,” says Bloomfield Hills, Michigan, family lawyer Richard Victor, founder of the Grandparents Rights Organization, which helps grandparents with visitation battles, among other problems.

“It’s emotional blackmail and will escalate if you give into it,” says Abramowitz, who advises clients to offer to pay for family therapy instead.

Is there a solution for grandparents? “You get more with sugar than you do with a cane,” says Atlanta family lawyer Randall Kessler, who chairs the American Bar Association Family Law Section. “Be nice to the person who has control, and that may include some financial support.”

Kessler also gets creative: When a mother objects to being parted from her children, he has suggested that grandparents invite the mother along on a family vacation as their guest, even with her current partner. “Usually they stay in a hotel down the road,” he says. More often, they turn down the offer but allow the visit.”