Do Grandparents Have Rights?

In Florida, grandparents do not have an absolute right to visitation, time-sharing or custody of their grandchildren except in extremely limited circumstances.  Basically, other when both parents are deceased or when there is only one parent who is around and not a violent felon, grandparents have no rights to visitation whatsoever.

This can be a difficult for a grandparent to understand because they often play a very unique role in their grandchildren’s lives.  This is especially true because many parents embrace the wisdom that grandparents provide; as well as rely on a grandparent to act as a caregiver instead of leaving the child at a daycare facility.  In these scenarios, there is an exceptional and irreplaceable bond between the grandparent and grandchild.

Although it is extremely difficult to quantify, the divorce rate in Florida is approximately equivalent to fifty percent of those who are in their first marriage; but with second marriages the divorce rate increases to almost seventy percent.  While divorces impact children, they also can significantly impact grandparent rights as well as the rights of other extended family members.  In addition, often times a family dispute will mean an end to grandparents being able to see their grandchildren.

This is because the Florida Supreme Court has consistently ruled that grandparent rights statutes enacted by the Florida Legislature are unconstitutional.  Article I, § 23 of the Florida Constitution contains an explicit right to privacy stating that “Every natural person has the right to be left alone and free from governmental intrusion into his private life . . .” It is this right to privacy which the Florida appellate courts have relied upon in finding that statutes which provide visitation or custody rights to a grandparent constitute a governmental intrusion into a parent’s private life.

This is very unfortunate because for those who have been raised in a strong and stable family setting, grandparents play a tremendous role in not only the upbringing of their grandchildren – but also in providing important moral influences.  When a mother and father divorce or separate, often it is both children and grandparents who lose the most.  In fact, grandparents may find that a divorce or separation might mean the end of any ability to even see their grandchildren – let alone to spend significant time with them.

So exactly under what circumstances are grandparents allowed to legally petition the court for visitation with their grandchildren?  Florida Statute § 752.011 provides that “A grandparent of a minor child whose parents are deceased, missing, or in a persistent vegetative state, or whose one parent is deceased, missing, or in a persistent vegetative state and whose other parent has been convicted of a felony or an offense of violence evincing behavior that poses a substantial threat of harm to the minor child’s health or welfare, may petition the court for court-ordered visitation with the grandchild under this section.”

The above statute went into effect on July 1, 2015, however since that date there are no appellate cases out there that interpret this statute.  Therefore, it remains to be seen whether this most recent Florida statute will ultimately provide grandparents with visitation and custody rights.

 

 

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