Tag: Grandparent rights to visitation

Grandparent Custody Goes to Federal Court

A rare grandparent custody and timesharing case ends up in a federal court after the child in question filed a temporary restraining order to prevent county child services from sending him to Florida to live with a father he claims he’s never met.

Grandparent Custody

The Ruckus in Columbus

“John Doe” is a thirteen-year-old boy in the temporary custody of Franklin County Children Services. He had been living with his mother in Ohio, but Children Services suspected that he was being abused or neglected. So, Children Services filed a case in Ohio state court to have Doe removed from his mother’s home. The court ordered Doe removed, and it is now presiding over the resulting custody dispute.

During the proceedings, the state court gave Children Services custody of Doe. Children Services then placed him with his maternal grandmother, who he has had a relationship with for much of his life and who also lives in central Ohio. A Guardian Ad Litem, who filed a report, recommend placement with his grandmother.

The child claims he has had no contact with his father from the time he has a baby until after the case was filed, that his father has a criminal record and has two family members who died from drug overdoses. He has expressed fear of his safety if made to live with his father, as well as fear of traveling to Florida at this time during the COVID-19 pandemic, and wishes to remain with his grandmother.

However, Child Services decided the child should be put on a plane to live permanently with his father in Florida, for reasons unknown to him, with whom, as best he can recall, he has not had a relationship for his entire life.

The child then filed a complaint in the U.S. District Court, and sought a temporary restraining order (a TRO) claiming he was denied procedural due process and first amendment retaliation claims. The trial court granted his motion.

Children Services appealed to the 6th Circuit Court of Appeals and moved to stay the injunction pending the appeal.

Florida Grandparent Visitation

I have written extensively on grandparent visitation in Florida. 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 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.”

Recently, 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 Buckeye Way

The Sixth Circuit rejected Children Services’ arguments that the district court should have abstained in favor of state proceedings:

Children Services filed the case to remove Doe from a potentially abusive home, and “the temporary removal of a child in a child-abuse context is … in aid of and closely related to criminal statutes.”

But removal proceedings are not at all “akin to criminal prosecution” as far as the child is concerned. And here, it is the child who has filed the federal lawsuit. That difference matters, because the Court has described proceedings in this second category as those that are “characteristically initiated to sanction the federal plaintiff.”

That does not describe this case, where the federal plaintiff is not an abusive parent, but a child. In the absence of full and thorough briefing, we will not broadly construe the Younger categories to apply to this different situation—especially given the Court’s instruction that Younger “extends to the three ‘exceptional circumstances’ [it has identified], but no further.”

Another argument by the agency was that under the Rooker-Feldman doctrine federal district courts lack jurisdiction to review state court judgments, but the court held it has “no application to judicial review of executive action, including determinations made by a state administrative agency.”

The court found that the child was not challenging a state court judgment; he was challenging the decision of Children Services, an agency of Franklin County, Ohio.

The court also rejected Children Services’ argument that it should get a stay because it’s likely to prevail on the merits of its appeal:

The states’ interest in resolving child-custody disputes is exceptionally strong, and federal court involvement in custody proceedings will almost always be inappropriate.

Finally, the court cautioned all district courts against entangling themselves in this area of traditional state concern.

The 6th Cir. Opinion is here.

 

You Can’t Post That: Free Speech and Child Custody

Free Speech and child custody becomes an issue every time someone posts photos of children on social media. Glowing grandparents should be especially careful. That’s because in the European Union, balancing freedom of speech and privacy has become much trickier after a Dutch court ordered a grandma to take down photos of her grandchildren.

Free Speech and Custody

European Union Speech Laws

In the Netherlands, a woman was asked by her daughter to take down pictures of her children from Facebook and Pinterest several times, but she did not respond. The daughter took this little family dispute to court, and asked a judge to stop her.

A judge in the province of Gelderland, in the eastern part of the country, decided that the grandmother was prohibited from posting photos on social media of her three grandchildren without the permission of her daughter, the children’s mother.

The District Court judge said grandma violated Europe’s sweeping internet privacy law, called the General Data Protection Regulation, or G.D.P.R. In the Netherlands, the G.D.P.R. dictates that posting pictures of minors under the age of 16 requires permission from their legal guardians.

The women, whose names were not provided in the court documents, fell out about a year ago and hadn’t been in regular contact, according to filings in the court case. After the children’s mother asked for the pictures to be deleted without the desired effect, she took the case to court.

Publishing the children’s pictures on social media would, according to the mother, seriously violate their privacy.

The Gelderland judge agreed that the grandmother did not have permission to post the pictures under General Data Protection Regulation (GDPR) legislation.

Those rules do not normally apply to the storage of personal data within personal circles such as family. However, in this case, the grandmother had made the photos public without the consent of the mother — who has legal authority over which data of her underage children may be stored and shared.’

Florida Free Speech and Child Custody

I’ve written about free speech in family cases before. Family courts have a lot of power to protect children. Florida courts have to balance a parent’s right of free expression against the state’s parens patriae interest in assuring the well-being of minor children. Currently, grandparents have little to no rights to visitation in Florida.

In Florida, there have been cases in which a judge prohibited a parent from speaking Spanish to a child. A mother went from primary caregiver to only supervised visits – under the nose of a time-sharing supervisor. The trial judge also allowed her daily telephone calls with her daughter, supervised by the Father.

The Mother was Venezuelan, and because the Father did not speak Spanish, the court ordered: “Under no circumstances shall the Mother speak Spanish to the child.”

The judge was concerned about the Mother’s comments, after the Mother “whisked” the child away from the time-sharing supervisor in an earlier incident and had a “private” conversation with her in a public bathroom. She was also bipolar and convicted of two crimes.

The appeals court reversed the restriction. Ordering a parent not to speak Spanish violates the freedom of speech and right to privacy.

Not unlike the new EU law, Florida law tries to balance the burden placed on the right of free expression essential to the furtherance of the state’s interests in promoting the best interests of children. In other words, in that balancing act, the best interests of children can be a compelling state interest justifying a restraint of a parent’s right of free speech.

As the Windmill Turns

The Dutch court also held that by posting of photographs on social media, the grandmother made them available to a wider audience, the court’s ruling, published earlier this month, explained.

“On Facebook, it cannot be ruled out that placed photos could be distributed and that they may come into the hands of third parties”.

The judge ordered the grandmother must remove the pictures of her grandchildren from Facebook and Pinterest within ten days, the judge ruled. If she does not, she must pay a penalty of €50 ($55) per day that the photos are online, with a maximum penalty of €1,000 ($1,100).

The daughter had asked to impose a penalty of €250 ($275) per day if the photos remained. According to the mother’s statement, publishing the children’s pictures on social media can seriously violate their privacy.

GDPR is the European Union’s data privacy law, which came into effect in 2018. It gives people more control over their personal data and forces companies to make sure the way they collect, process and store data is safe.

The EU’s intention was to achieve a fundamental change in the way companies use data — with its central idea being that people are entitled “privacy by default.” Although EU countries seem to have taken their data protection obligations under the GDPR seriously, their efforts to balance data privacy and freedom of expression have been more uneven.

Many are concerned that the GDPR’s safeguards to protect the right to data privacy may compromise freedom of expression. As the practice of enforcing the GDPR by family members continues to unfolds, many are watching if the EU can balance privacy and freedom of expression.

The CNN article is here.

 

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.

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.

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.