Bleeding grandparent visitation rights.

• Author: Kauffman, Ronald H.
• Position: Family Law

There are 21 military bases in Florida with over 70,000 active duty, Reserve, and National Guard personnel. (1) If you count smaller installations and camps, without counting Floridians serving in the armed forces worldwide, there are even more military personnel in this state. When battalions of voting grandparents are added to that military presence, politicians take notice. (2)

Grandparent rights to visit their grandchildren over the objections of fit parents do not exist in Florida ... or so we thought. (3) In the latest clash over grandparent visitation rights, 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. This article briefly examines the history of grandparent visitation rights, the recently enacted F.S. [section] 61.13002(2), and its place in this long war.

A Bridge Too Far

Ironically, grandparent visitation has faced a long, hard slog in Florida. Florida is unique; it has one of the largest populations of the elderly and has by far the highest proportion of elderly, almost 19 percent of the state's total population. (4) Nationwide, about 75 percent of the elderly are grandparents. (5) Increasingly, grandparents are living with their grandchildren. (6) Not surprisingly, legislators have sought to serve elderly voters by providing rights of visitation--even over the objections of fit parents. However, this legislation has traditionally been in conflict with common law, in which there was never a legal right to nonparent visitation. (7) More recently, grandparent visitation statutes have been held to violate both the U.S. and Florida constitutions. (8)

The battle erupted in 1978 when the legislature made two changes to the Florida Statutes, giving grandparents visitation rights. First, F.S. [section] 61.13(2)(b) was added:

The court may award the grandparents visitation rights of a minor children [sic] if it is deemed by the court to be in the child's best interest. Nothing in this section shall be construed to require that grandparents be made parties or given notice of dissolution pleadings or proceedings, nor shall such grandparents have legal standing as "contestants" as defined in s. 61.1306. (9)

Second, F.S. [section] 61.08 was amended to add:

Any court of this state which is competent to decide child custody matters shall have jurisdiction to award the grandparents of a minor child or minor children visitation rights of the minor child or children upon the death of or desertion by one of the minor child's parents if it is deemed by the court to be in the minor child's best interest. (10)

In 1984, the legislature pressed its offensive by launching Ch. 752, titled "Grandparental Visitation Rights." Ch. 752 included a procedure for granting visitation rights to grandparents in three situations: 1) when one or both parents of the child are deceased; 2) when the marriage of the child's parents has been dissolved; or 3) when a parent of the child has deserted the child. (11)

In 1990, the constitutionality of Ch. 752 was challenged in Sketo v. Brown, 559 So. 2d 381 (Fla. 1st DCA 1990). In Sketo, a parent argued F.S. [section] 752.01 violated her constitutional right to privacy. (12) The First District upheld the statute, finding that Florida has a sufficiently compelling interest in the welfare of children in a family in which a parent died, and it can provide for the continuation of relations between children and their grandparents so long as it is in the children's interest. (13) Grandparent visitation had won its first major battle. (14)

In 1993, the legislature completed its campaign for grandparent visitation rights by adding F.S. [section] 752.01(1)(e):

(1) The court shall, upon petition filed by a grandparent of a minor child, award reasonable visitation rights of visitation to the grandparent with respect to the child when it is in the best interest of the minor child if:

(e) The minor is living with both natural parents who are still married to each other whether or not there is a broken relationship between either or both parents of the minor child and the grandparents, and either or both parents have used their parental authority to prohibit a relationship between the minor child and the grandparents. (15)

With the 1993 amendment, grandparent visitation rights had spilled into practically every living arrangement, even when a child lives within an intact family with two fit parents. (16)

The Decline and Fall of Grandparent Visitation Rights

The Florida Supreme Court built a fortification on the road to grandparent visitation rights in Beagle v. Beagle, 678 So. 2d 1271 (Fla. 1996). The facts in Beagle are simple. The grandparents, relying on the new F.S. [section] 752.01(1)(e), filed an action for visitation with their granddaughter. The parents moved to dismiss the petition. At the time of the filing of the petition, the parents were living together with the child as an intact family. The trial court dismissed the grandparents' petition, finding the statute violated the parents' right to privacy, and the grandparents appealed.

The First District, which six years earlier had decided Sketo, reversed. (17) In Sketo, the panel found the statute constitutional to the extent it provided grandparent visitation rights in the event of a death of a parent, based on a best interest of the child test. (18) In Beagle, the First District applied the same "best interest" analysis to the new F.S. [section] 752.01(1)(e), and upheld the statute.

The Florida Supreme Court quashed the First District's Beagle opinion and remanded with directions to affirm the trial court. The Florida Supreme Court explained 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: The challenged paragraph does not require the [s]tate to demonstrate a harm to the child prior to the award of grandparental visitation rights. Based upon the privacy provision in the Florida Constitution, we 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.. ..Without a finding of harm, we are unable to conclude that the [s]tate demonstrates a compelling interest. We hold that, in the absence of an explicit requirement of harm or detriment, the challenged paragraph is facially flawed. (19)

However, the Beagle court did not render grandparent visitation unconstitutional. The Florida Supreme Court only answered the narrow question of whether the state had shown a compelling state interest in imposing grandparental visitation rights on an intact family over the objection of a...