Happiness is being a grandparent? The evolution of grandparent visitation in Florida.

• Author: Cestero, Jorge M.

Consider the following hypothetical scenarios:

Grandma and Grandpa Nomorals are the dope dealing, swinging, nomadic paternal grandparents of young Sonny Himorals, an intelligent and handsome seven-year-old. They have a 32-page criminal "rap sheet." Sonny's wonderful mother, Jean Himorals, M.D., of West Palm Beach is a pediatric psychiatrist who has been divorced from Sonny's dad for eight years. The Nomorals seek grandparental visitation with Sonny. Sonny's mother is naturally opposed.

Grandma and Grandpa Wonderful are the sweet, loving, and caring maternal grandparents of Joy Notsomuch, another intelligent and beautiful seven-year-old. They live in a three-bedroom house in Lakeland and have much to offer their granddaughter Joy's married parents, Spike and Cruella Notsomuch, live in a trailer somewhere in unincorporated Polk County. They are both unemployed and on unemployment, although Cruella sometimes tends bar to get a few bucks. Joy goes to school in Winter Haven and does quite well, all things considered. Grandpa Wonderful told Spike to get a job. Now the Notsomuchs have precluded the Wonderfuls from seeing Joy for over six months. The Wonderfuls seek grandparental visitation with Joy.

Who has standing to sue under Florida's grandparent visitation statute? What are the constitutional issues affecting the parents? The answers to these questions have changed significantly in the 90's. This article explores those changes and makes an attempt to discern what the future holds in store for grandparental visitation rights in Florida.

To understand the historical perspective of statutory grandparent visitation, one must glance at the position of grandparents in society today. Statistics show that approximately 75 percent of all older Americans are grandparents.[1] Many issues challenging parents and children today, including dual-career couples, social mobility, and rapid cultural and technological shifts, have altered the dynamics of the grandparent/nuclear family relationship.[2]

Under common law, grandparents had no legal right to visit with their grandchildren.[3] It was said that parents had only a moral obligation to allow grandparent visitation, leaving a grandparent no cause of action for relief.[4] This was because any such cause of action would serve to foster ill will between parents and grandparents, placing the child in the center of the conflict.[5] Before 1978, the case law in Florida dictated that an order was "unjustified" and "unenforceable" if it granted visitation rights to a nonparent of a child whose custody had been awarded to a fit parent. Sheehey v. Sheehey, 325 So. 2d 12 (Fla. 2d DCA 1975).

In 1978, the Florida Legislature first modified F.S. [sections]61.13 to allow a trial court to award grandparent visitation as part of a marital dissolution proceeding. F.S. [sections]61.13(2)(b) (1978 Supp.). Grandparents, however, were not given legal standing to appear or intervene and did not have to become parties to the action; thus, when seeking visitation during a divorce or in an intact marriage, the grandparents generally lost on standing issues.[6] In 1984, the legislature granted grandparents the right to seek visitation by petition upon the death of one parent, abandonment by a parent, or dissolution of the parents' marriage. Also, the grandparent visitation statutes were removed from F.S. Ch. 61 and consolidated in Ch. 752. F.S. Ch. 752 (1984 Supp.); Beagle v. Beagle, 678 So. 2d 1271 (Fla. 1996).

In 1990, the legislature retooled F.S. Ch. 752 by adding guidelines for a court to determine the best interests of a child involved in grandparent visitation cases.[7]

Also in 1990, the constitutionality of Florida's grandparent visitation statute was challenged in the oft-cited case Sketo v. Brown, 559 So. 2d 381 (Fla. 1st DCA 1990). In Sketo, the mother/respondent argued that F.S. [sections] 752.01 was unconstitutional because it violated her right to privacy that was protected by the state and federal constitutions. The First District held that the statute was not facially unconstitutional because the state has a sufficiently compelling interest in the welfare of children that it can provide for the continuation of relations between children and their grandparents under reasonable terms and conditions as long as that is in the children's interest. The statute had survived its first true challenge.

The last legislatively imposed change to the...