Tag: Grandparent 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.

New Grandparent Visitation Law

Posted by Ron Kauffman on

After Governor DeSantis signed House Bill 1119, a new grandparent visitation law becomes effective this month. Often denied any rights to custody and visitation, the new ‘Markel Act’ is a significant step towards increasing Florida grandparent visitation rights in some very narrow, and tragic, situations.

Grandparent Visitation

Dan Markel Tragedy

The Markel Act was inspired in part by the 2014 murder-for-hire of Florida State law professor Dan Markel. Professor Markel was killed by hitmen in his driveway after he dropped his two sons off at preschool.

At the trial for Katherine Magbanua and Sigfredo Garcia in 2019, prosecutors claimed that Charlie Adelson – Markel’s ex-brother-in-law, arranged to pay $100,000 for the murder so that Markel’s ex-wife, Wendi Adelson, could get full custody of their two sons and relocate to South Florida.

Garcia was found guilty of first-degree murder and conspiracy but the jury was unable to reach a verdict on Magbanua. She was recently retried and found guilty of first-degree murder, conspiracy to commit murder and solicitation to commit murder.

In April 2022, Charlie Adelson was arrested and charged with first-degree murder, conspiracy to commit murder, and solicitation to commit murder. Markel’s ex-wife Wendi and ex-mother-in—law Donna Adelson were also named as co-conspirators.

During the intervening years, Dan’s parents, the paternal grandparents of the two boys, have been denied any contact with their grandchildren.

Grandparent Visitation

I have written about how Florida courts have consistently held as unconstitutional statutes that have attempted to compel visitation or custody with a grandparent based solely on the best interest of the child standard.

The courts’ rulings are premised on the fact that the fundamental right to parent without intrusion by the government is a long-standing liberty interest recognized by both the United States and Florida constitutions.

However, a grandparent may be awarded visitation rights under very limited circumstances, such as when a child’s parents are deceased, missing, or in a permanent vegetative state.

New Grandparent Visitation law

The Markel Act amends Florida law to create a rebuttable presumption for granting reasonable visitation with a petitioning grandparent or step-grandparent under certain circumstances.

Under the bill, if the court finds that one parent of a child has been held criminally liable for the death of the other parent, or civilly liable for an intentional tort causing the death of the other parent, a rebuttable presumption arises that the grandparent who is the parent of the child’s deceased parent is entitled to reasonable visitation with the grandchild.

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.

Specifically, the bill says that grandparents can petition courts for visitation with their grandchildren where the living parent was found culpable by a criminal or civil court for the other parent’s death.

“The tragedy of Dan’s murder was compounded by this cruel, unnecessary separation — but until now, Florida law gave his parents no recourse toward reuniting with their grandchildren.”

The new law became effective on July 1st. A copy is available here.

Florida Grandparent Visitation Bill

Posted by Ron Kauffman on

Good news for Florida grandparents. The Florida House recently passed a visitation bill with profound meaning for Florida grandparents who have become estranged from their grandchildren after a tragedy. A companion bill, SB 1408, is awaiting a final vote on the Senate calendar.

Grandparent Visitation

Markel Act in the House

Currently in Florida, a grandparent can only be awarded visitation rights with their grandchildren under extremely limited circumstances, such as when a child’s parents are both deceased, missing, or in a permanent vegetative state.

However, when 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 court would have to 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 to be entitled to visitation. If that burden is not met, the court must dismiss the grandparent’s petition.

HB 1119 dramatically changes the law of grandparent visitation in Florida. It expands the ability for a grandparent to petition for visitation rights of his or her grandchild in certain narrow circumstances.
The bill does this by changing Florida Statutes to create a rebuttable presumption for granting reasonable visitation with the petitioning grandparent or step-grandparent under certain circumstances.

If a court finds that one parent of a child has been held criminally or civilly liable for the death of the other parent of the child, a rebuttable presumption arises that the grandparent who is the parent of the child’s deceased parent is entitled to reasonable visitation with the grandchild.

The effort behind the bill, informally referred to as “The Markel Act” was inspired in part by the 2014 murder of FSU law professor Dan Markel, who was hunted down and shot in the head by a hitman shortly after dropping Dan dropped his two sons off at preschool.

Prosecutors have publicly identified Markel’s ex-wife, Wendi Adelson, as an alleged “co-conspirator” to the murder, along with her mother and brother. Law enforcement says Adelson’s motive was to relocate to South Florida amid custody battles with Markel. While Adelson family members have not been arrested yet, three others have — the hitman, who was found guilty and sentenced to life; his accomplice, who pleaded guilty and confessed who had hired them; and their intermediary, who faces a retrial in May.

The bill passed the House with a vote of 112-3.

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.”

Not too long ago, 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.

Senate Grandparent Visitation

The Senate companion bill unanimously cleared its committees and heads next to the Senate Floor. Both bills have bipartisan support. Specifically, the Senate Bill creates a presumption that a court may award a grandparent reasonable visitation with a grandchild in cases where the court has found that one parent has been held criminally or civilly liable for the death of the other parent of the grandchild unless not in the child’s best interest.

For five years, while the wheels of justice turned, Markel’s parents, Ruth and Phil, were kept from contact with their grandsons. As Ruth commented:

“We have profound gratitude for the Florida House, in particular Speaker Chris Sprowls, Rep. Jackie Toledo, and the other co-sponsors, for their vision and leadership. There’s nothing more important to us than leaving a record of how deeply we’ve tried to reconnect with our grandsons. Out of our tragedy, we hope to create something meaningful for other families to visit their grandchildren. Today marks a powerful day in this journey.”

Toledo tried to downplay the impact on parent rights by commenting that the Senate was not looking at ways to dismantle the rights of parents but to correct the problem in law when one parent retains custody even when implicated in the death of their co-parent.

Justice for Dan, a grassroots group of friends and allies, praises Speaker Sprowls, the bill sponsors, and members for their action for what it deems a clear message: murder can’t be a solution to custody battles.

The Florida Politics article 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.

 

Grandparent Custody Goes to Federal Court

Posted by Ron Kauffman on

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.

 

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 Rights. Yes, really.

Posted by Ron Kauffman on

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

Posted by Ron Kauffman on

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 Law Update

Posted by admin on

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.