Tag: Grandparent Rights visitation

Grandparent Visitation and Remarriage

Posted by Ron Kauffman on

In Ohio, an order granting grandparent visitation comes into question after the remarriage of the child’s father. Does the father’s remarriage, and the adoption of the child by the new stepmother, cut off the grandmother’s court ordered visitation rights?

Grandparent Visitation

The Heart of It All

The child. L.S. was born in 2014, to unmarried parents. In 2019, a court awarded John Snyder – the child’s natural father – legal custody. At the same time, Zadunajsky, L.S.’s paternal grandmother, was granted companionship rights with the child.

Then in 2021, Snyder filed a motion to terminate or modify the grandmother’s visitation order because the child has now been adopted by his stepmother, and there is an intact family. The lower court granted the Father’s Motion for Termination without any hearing or the proffering of any evidence.

Instead, the magistrate ruled as a matter of law that in Ohio:

Once the adoption took place, the Paternal Grandmother no longer had standing to seek visitation. Once an adoption order has been entered, all grandparent visitation rights are terminated.

The lower court held there was no case law in Ohio that allows a court to grant or maintain established visitation once an adoption is granted. The legislature has not provided grandparent visitation in the case of an adoption.

This legal reality is very frustrating to courts because the main issue should be what is in the best interest of the child. The lower court also held that the Paternal Grandmother would only have standing to seek visitation upon the death of Father or the divorce of the stepmother.

The grandmother appealed arguing that an adoption by the step-mother of the child was a proper basis for terminating the pre-existing visitation of the paternal grandmother.

Florida Grandparent Visitation

Under current law in Florida, a grandparent may be awarded some visitation rights in very limited situations, such as when the child’s parents are deceased, missing, or in a permanent vegetative state. If only one parent is deceased, missing, or in a permanent vegetative state, the other parent must have been convicted of a felony or a violent offense in order for a grandparent to be able to petition for visitation.

Additionally, a Florida court has to also find that the grandparent has established a prima facie case that the surviving parent is unfit or poses a danger of significant harm to the child. If that burden is not met, the court must dismiss the grandparent’s petition.

In 2022, Florida amended the grandparent visitation law as a result of the murder of FSU Professor Dan Markel. Supporters of the amendment call it the “Markel Act.” Professor Markel was shot to death in his driveway by hitmen hired by his ex-brother in law. His ex-mother in law was recently arrested at Miami International Airport after attempting to board a one way flight to Vietnam.

The new law creates a rebuttable presumption for grandparent or step-grandparent visitation, but only in cases where one parent has been found criminally liable for the death of the other parent, or “civilly liable for an intentional tort causing the death” of the other parent.

The presumption may be overcome only if the court finds that visitation is not in the child’s best interests. The bill does not distinguish between biological grandparents and step-grandparents.

Somewhere in Ohio

The Ohio appellate court agreed with the grandmother and reversed. The opening words of the statute exempt a spouse and the relatives of the spouse from the effects of a final decree of adoption. As Snyder was spouse of the adopting stepparent and Zadunajsky was a relative of Snyder, they are exempt from those effects.

The Father also argued that previous cases affirmed divesting biological grandparents of their visitation and companionship rights. However, the legislature’s intent was to find families for children. The legislature was concerned that if adoptive parents are forced to agree to share parenting responsibilities with people they don’t know, potential adoptive parents will be deterred from adopting. But that legislative intent did not apply to the relatives of the spouse/biological parent in a stepparent adoption.

On remand, the family court may consider whether the continuation of Zadunajsky’s companionship rights is in the best interest of the child in light of the stepparent adoption.

The opinion is here.

Religion LGBTQ+ and Custody Rights Erupt

Posted by Ron Kauffman on

Religion LGBTQ+ and child custody rights recently erupted in a Washington federal court. Parents usually have the right to direct the religious upbringing of their children, but one couple found their religious beliefs prevented them from even becoming parents.

Parent Custody

Rumblings

James and Gail Blais wished to become foster parents, and eventually adopt, Gail’s biological great-granddaughter, H.V. The first step to adoption requires them to be licensed foster parents. However, they are observant Seventh day Adventists.

The reason for the need to become foster parents so quickly is because shortly after H.V.’s birth – in fact, while she still was in the hospital – H.V. was removed from her biological parents and placed in foster care out of concerns for her welfare. H.V. is an infant. At no time during the application process has she exhibited any issues with regard to sexual orientation or gender preference.

The Blaises wanted to care for H.V. by becoming her foster parents with the goal of adoption if reunion with her mother was not possible. They are the only biological relatives who have expressed an interest and ability in fostering and adopting H.V.

The Department administers the State’s foster licensing and placement program, and the requirements for becoming a foster parent are laid out in Washington law and the Department’s Policy 6900, entitled “Supporting LGBTQ+ Identified Children and Youth.”

The Blaises participated in Department mandated training and required certification courses. They made clear that, as Seventh-day Adventists, they believe it is important to love and support all, particularly youths who may feel isolated or uncomfortable because of who they are.

But with regard to the specific hypothetical questions relating to possible hormone therapy, in the event H.V. one day developed gender dysphoria, the Blaises said they could not support hormone treatments based on their sincerely-held religious convictions, but would still be loving and supportive of H.V.

The Department denied the Blaises’ foster care license application, and H.V. remains in non-relative foster care. The Blaises filed a federal action against the Department seeking to enjoin the enforcement of the Department policy as it violated the First and Fourteenth Amendments.

Florida Religion and Family Law

I’ve written about the intersection of religion and divorce – especially as it relates to vaccinations. Religion, religious beliefs, and religious practices are not statutory factors Florida courts consider when determining parental responsibility.

Nor is religion an area in which a parent may be granted ultimate responsibility over a child. Instead, the weight religion plays in custody disputes grew over time in various cases.

That’s because placing restrictions on a parent’s right to expose his or her child to his or her religious beliefs have consistently been overturned in the absence of a clear, affirmative showing that the religious activities at issue will be harmful to the child.

Generally, Florida courts will not stop a parent from practicing their religion or from influencing the religious training of their child inconsistent with that of the other parent.

Eruption

The federal judge found the question in this case was whether Washington’s regulations covertly suppressed religious beliefs. The judge found that in practice, the Department regulations work to burden potential caregivers with sincere religious beliefs yet almost no others.

It also found that the Department’s interpretation of its regulations and policies also favored secular viewpoints over certain religious viewpoints.

For example, the Department favors religious and non-religious applicants who have neutral or pro-LGBTQ+ views over religious and non-religious applicants who have non-neutral or anti-LGBTQ+ views.

The State denied their application because the tenet of the Blaises’ faith flouted the Department’s regulations and policy, and therefore “punished the expression of religious doctrines it believes to be false.”

The Court enjoined the Department from using Policy 6900 against prospective foster parents.

The injunction order is here.

 

New Article on Grandparent Visitation

Posted by Ron Kauffman on

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

Posted by Ron Kauffman on

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 & Millennials

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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

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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.