Unbowed, Unbent, Unbroken: An Update on Grandparent Visitation.

• Author: Kauffman, Ronald H.
• Position: Florida

The struggle for grandparent visitation rights in Florida is a game of thrones between the three branches of government. (1) 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.

After years of battles between governors, legislators, and judges, Florida grandparent visitation rights have come to resemble Winterfell. Maybe, "summer is coming." In 2012, the governor signed into law a statute indirectly granting grandparent visitation rights for deployed military parents. (2) In 2015, the legislature repealed unconstitutional language in earlier versions of the grandparent visitation statute and created a new limited grandparent visitation statute. (3) This year, the Florida Supreme Court enforced an out-of-state grandparent visitation order despite the lack of any showing of harm to a child. (4)

This article briefly reviews the history of grandparent visitation rights in Florida and provides an update on those rights through the Florida Supreme Court's recent decision in Ledoux-Nottingham v. Downs, 210 So. 3d 1217 (Fla. 2017), earlier this year. (5)

The Gift

In common law, there was never a legal right to nonparent visitation, and Florida has clung to that tradition. (6) A very high percentage of elderly voters reside in Florida. (7) Not surprisingly, Florida politicians have historically tried to provide enforceable visitation rights to grandparents--even over the objections of fit parents.

In 1978, the legislature made two changes to the Florida Statutes that granted enforceable rights to visit their grandchildren. First, F.S. [section]61.13(2)(b) permitted courts to award grandparents visitation rights of a minor child if it is deemed by the court to be in the child's best interest. (8)

Later, F.S. [section]61.08 was amended to give courts, which are competent to decide child custody matters, jurisdiction to award the grandparents of a minor child visitation rights upon the death of or desertion by one of the minor child's parents if a court finds it to be in the minor child's best interest. (9)

In 1984, the legislature enacted Ch. 752, "Grandparental Visitation Rights," which 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. 10

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. 11 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 best interest. (12) Grandparent visitation had won its first major battle. (13)

Finally, in 1993, the legislature broke all the chains on grandparent visitation rights by adding F.S. [section]752.01(1)(e). That section allowed courts to award reasonable visitation rights to grandparents when it is in the best interest of the minor child; even if the child is living with both parents who are still married to each other. (14)

The Wall

The Florida Supreme Court built a massive wall blocking Florida 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. (15) 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. 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.

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." (16)

However, the Florida Supreme Court did not hold that all grandparent visitation was unconstitutional. The Beagle panel only answered a narrow question: Did the state show a compelling state interest in imposing grandparental visitation sufficient to overcome the fundamental rights of parents? The Beagle court concluded there was no compelling state interest, unless the state is acting to prevent demonstrable harm to a child. (17)

Two years after Beagle, F.S. [section]752.01(1), which provided for grandparent visitation rights, met the same grisly fate as House Stark. In Von Eiff v. Azicri, 720 So. 2d 510 (Fla. 1998), the high court--relying on the...