Grandparents have rights after all: no area of custody law is more fraught with conflict between the rights of a child and the legal rights of a parent than the area of third party custody involving grandparents.

• Author: Zisser, Carolyn S.
• Position: Florida

Just when thought grandparents' rights, or the lack thereof, was a settled issue, it has become apparent that one area has not been settled. Do grandparents who have once been awarded custody have the same fights, in an action for modification, as a parent who has been awarded custody, or does res judicata mean anything in this context?

There is no area of custody law more fraught with conflict between the rights of a child and the legal rights of a parent than the area of third party custody involving grandparents. Although the statutory authority previously granting grandparents the right to seek custody and visitation rights of their grandchildren (1) and to intervene in custody actions (2) have been abrogated by the Florida Supreme Court in Von Eiff v. Azicri, 720 So. 2d 510 (Fla. 1998), and Richardson v. Richardson, 766 So. 2d 1036 (Fla. 2000), respectively, many grandparents and other third parties who obtained permanent custody prior to the demise of these statutes still have custody today.

The conflict between the biological parent's presumptive right to be the custodial parent and the child's best interests to maintain a stable relationship in a grandparent's home pursuant to a final judgment of custody is heightened in the modification setting. The reason why grandparents or other third parties have child custody often is due to the biological parents' inability to take care of their children because of an unstable lifestyle, lack of employment, drug and/or alcohol abuse, and other lifestyle choices inconsistent with raising a child. The parent in this scenario consented to the grandparent's custody in a court proceeding or the grandparent was adjudicated the custodial parent prior to the demise of the grandparent custody and visitation statutes. Assuming the grandparent was granted "permanent custody" (until the minor child reaches the age of 18 or becomes emancipated), the question remains as to the burden of proof at the modification stage and who bears that burden, when the parent comes back later in the child's life "rehabilitated" and ready to resume responsibility for the care and custody of the child.

It is clear in the parent v. parent context that a parent who seeks to modify a prior award of custody has an "extraordinary" burden to plead and prove that there has been a substantial change in circumstances since the entry of the final judgment addressing custody, and that failure to change custody would be detrimental to the child. (3) However, does this standard apply in the parent v. grandparent context? It is the purpose of this article to examine the proper standard to be utilized in custody modification cases between parents and grandparents.

In Young v. Young, 732 So. 2d 1133 (Fla. 1st DCA 1999), the First District Court of Appeal reversed the trial court's order modifying custody from the mother to the father because the evidence failed to establish either that the child's needs were being unmet in any way by the mother or that maintaining the status quo would be detrimental to the child. The court in Young further stated: "This test involves more than a decision that the petitioning parent's home would be better for the child, and requires a determination that there is some significant inadequacy in the care provided by the custodial parent." Id.

The Third District Court of Appeal most recently reaffirmed and clarified the above test in Perez v. Perez, 734 So. 2d 1177 (Fla. 1st DCA 1999). The court enunciated a twofold test. First, the party seeking to modify custody must prove a substantial and material change in circumstances and, second, that continued custody by the custodial parent would be detrimental to the child before custody can be modified. Query: Does this standard apply to the parent who is seeking to modify custody placed with the grandparents under a final judgment enacted prior to the demise of the grandparent custody/visitation statute?

Case law uniformly recognizes a "parental preference" in deciding custody actions between grandparents and parents. The "parental preference," with its constitutional foundation of privacy, recognizes a parent's "longstanding and fundamental liberty interest in determining care and upbringing of their children free from the heavy hand of government paternalism which is protected by the federal and state constitutions." U.S.C.A. Const. Amend. 14; Beagle v. Beagle, 678 So. 2d 1271 (Fla. 1996). The Florida Supreme Court in Beagle found that [section] 752.01(1)(e) was facially unconstitutional because it infringed upon the rights of parents to raise their children free from government interference.

The next assault on grandparent rights was made by the Florida Supreme Court in 1998 in Von Eiff. In that case, the Florida Supreme Court dealt with a different section of the grandparent visitation statute, [section] 752.01(1)(a), which provided for grandparent visitation where one or both parents of a child are deceased and visitation is determined to be in the best interest of the child. The court in Von Eiff applied the same reasoning as Beagle in striking down F.S. [section] 752.01(1)(a).

Although the grandparent visitation statute was declared unconstitutional in Von Eiff, that case does not bar court-ordered grandparent visitation if there is proof of demonstrable harm to the child.

Subsection (1)(a) suffers from the same infirmity and therefore also fails to survive the compelling state interest test. Subsection (1)(a) mandates that the trial court "shall" order grandparent visitation upon the grandparent's petition, "when in the best interest of the minor child," without first requiring proof of demonstrable harm to the child.

Arguably, it appears that if there is proof of demonstrable harm to the child, grandparent visitation can be required.

The Florida Supreme Court dealt the final mortal blow to grandparent custody rights in Richardson by declaring unconstitutional F.S. [section] 61.13(7), which provided

In any case where the child is actually residing with a grandparent in a stable relationship, whether the court has awarded custody to the grandparent or not, the court may recognize the grandparents as having the same standing as parents for evaluating what custody arrangements are in the best interest of the child.

Richardson, 734 So. 2d at 1064.

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