Grandparent rights to timesharing in florida
Visiting Your Grandchildren When Their Parents are Divorced or Deceased and Visiting Your Grandchild When You Have a Court Order from Another State
By: Bonnie Klein Rhoden, Esquire
In 1978 the Florida legislature enacted Florida Statute 61.13(b) which allowed courts to award grandparents visitation rights to a minor child.
A series of cases beginning as far back as 1996 chipped away at Florida Statute 752’s grandparents’ right to seek visitation with grandchildren ultimately resulting in Florida Statute 752 being found, in great part, unconstitutional. The parents’ rights to privacy under the federal and Florida’s constitution were of paramount concern in each case.
Beagle v. Beagle, 678 So.2d 1271 (Florida, 1996), heard by the Florida Supreme Court in August 1996 reviewed a certified question on grandparent visitation and the constitutionality of Florida Statute 752.01(e). It was found facially unconstitutional due to that section allowing impermissible state interference with parents’ rights as protected by the Due Process Clause of the US Constitution and the right to privacy in Article I, § 23 of the Florida Constitution.
In October 1998 Williams v. Spears, 719 So.2d 1236 (Florida, 1998) was issued after grandparents sought court ordered visitation under 752. The statute was found facially unconstitutional with the court citing parents’ right to privacy under the federal constitution but more so under Florida’s Constitution, Article 1 subsection 23 which gives Florida citizens increased protection from the intrusion of government into their right to privacy.
The Von Eiff case, (Von Eiff v. Aziciri, 720 So. 2d 510 (1998)) was heard by Florida’s Supreme Court in November of 1998. The resulting opinion in this case found F.S. 752.01 (1) (a) unconstitutional despite the trial and appeals court upholding the grandparent visitation rights statute in the earlier proceedings.
In 1999, Belair v. Drew, 770 So.2d 1164 (2000), was brought before the Florida Supreme Court on a Writ of Certiorari. The Writ was brought after the 5th District Court of Appeals refused to address a request by Ms. Bonnie Belair to declare Florida Statute 752.01 section (1)(b) unconstitutional. The 5th DCA felt there was a conflict between Belair’s case and the finding in Williams v. Spears, 719 So.2d 1236 (1998). The Florida Supreme Court disagreed with the 5th DCA finding the statute upon which the lower court’s Order allowing grandparent visitation was based on was unconstitutional. Thus also resolving the Williams, Id. conflict with the first DCA.
Later cases further eroded F.S. 752 including Saul v. Brunetti, 753 So. 2d 26 (2000), from January 2000 which found subsection (d) of the statute unconstitutional for children born out of wedlock.
At this point grandparents had little if any right to court ordered visitation with their grandchildren.
In 2015, the Florida Legislature voted to enact Florida Statute §752.011. This law allows the grandparent of a minor child to petition the court for visitation under specific conditions. The petition is allowed if the grandchild’s legal 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”. Under the new statute, “after conducting a final hearing on the issue of visitation, the court may award reasonable visitation to the grandparent with respect to the minor child if the court finds by clear and convincing evidence that a parent is unfit or that there is significant harm to the child, that visitation is in the best interest of the minor child, and that the visitation will not materially harm the parent-child relationship.” This makes timesharing for grandparents available in a limited window.
“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.” F.S. §752.011
In Florida grandparent visitation rights are still changing. There was a conflict, until a recent Florida Supreme Court case, between Florida’s district courts of appeal regarding a particular type of grandparent visitation. The conflict exists in situations when a state other than Florida entered a final order granting grandparents the right to visit with their grandchild(ren)and then the children are moved into Florida. Until recently the grandparents would not have had a right to visit even though they possessed a court order.
The case M.S. v. D.C., Jr., 763 So. 2d 1051
(Fla. 4th DCA, 1999), evaluated a Connecticut visitation order for grandparent visitation under the legal concept of full faith and credit. The Court determined that the other state’s order should be granted respect but that the full faith and credit clause does not overcome Florida’s public policy and Florida’s constitutional protection of a parent’s right to privacy and right to raise one’s child free from state interference.
In 2004 the Fifth District Court issued Shingel v. Peters, 867 So.2d 1281 (Fla. 5th DCA, 2004), which did not agree with the previous case in the 4th DCA. The Fifth upheld the decision of the trial judge in enforcing an order from Illinois granting grandparents visitation with the grandchildren. The 5th DCA certified to the Florida Supreme Court a question of conflict with the decision made by the 4th DCA in M.S. v. D.C., Jr.
Jump to the current day and the Fifth District Court was presented, in 2015, with this same issue in the case Ledoux-Nottingham v. Downs, 163 So. 3d 560 (2015). This case resulted from grandparents (granted visitation by a court in Colorado) wanting to exercise those rights here in Florida where the grandchildren were residing. After moving to Florida with her children the mother requested the Florida courts terminate the grandparents’ visitation rights by arguing that Florida did not have the right to enforce the visitation because such action of enforcement would be unconstitutional and against public policy. The District Court disagreed and found, pursuant to the Full Faith and Credit Clause, trial courts are required, without discretion, to give recognition to final judgments of another state. Once again the 5th DCA certified a conflict on this issue with M.S. v. D.C., Jr.
Based on the conflicts certified by the District Courts the Florida Supreme Court granted the request to hear the issue from the case Ledoux-Nottingham v. Downs. The arguments were heard by the Florida Supreme Court in 2016 on the Ledoux-Nottingham v. Downs.
WHERE WE STAND TODAY
The Florida Supreme Court issued a fourteen (14) page ruling in Ledoux-Nottingham v. Downs. This opinion acknowledges that the Florida Constitution’s article I, section 23, “protects the right of parents to raise their children free from unwarranted governmental interference.” The Court speaks of Florida public policy and parents’ right to exercise “childrearing autonomy” which has long been the thread through the cases that took apart the previous legislation and prevented grandparents from having a basis to seek visitation with their grandchildren.
Article I, section 23 says, in part, ““[e]very natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein.”
Despite this constitutional protection for parents raising children the Florida Supreme Court opinion clearly states that trial courts are required to give full faith and credit to orders issued by courts in other states. The 5th DCA opinion on this same case was upheld and the grandparents were granted the visitation with their grandchildren as ordered by a Colorado Court. Mentioned in the Court’s opinion was the fact that another state’s Final Order is entitled to full faith and credit in Florida. The Court discusses the theory of comity in comparison to full faith and credit and found that the 5th DCA finding “trial courts are required, without discretion, to give recognition to final judgments of another state when applicable” was correct. The U.S. Constitution, Article IV, section 1 contains the full faith and credit clause and the Court found this clause replaces the theory of comity with the “constitutional duty … to honor the laws and judgments of sister states.” Estin v. Estin, 334 U.S. 541 (1948).
The Florida Supreme Court opinion is well written to support the ultimate finding and it takes the time to cover the commity / full faith and credit argument, brings in the Parental Kidnapping Prevention Act (1980), numerous cases, potential public policy exceptions, and it logically ends with the conclusion that in this case, LeDoux-Nottingham v. Downs, the grandparents get visitation with their grandchildren.
We still have a long way to go to grandparents initially having standing in Florida’s courts to request visitation with their grandchildren but for now those grandparents with visitation orders from other states have a good chance of having those orders acknowledged and enforced.
Rhoden Law Group has attorneys serving Brevard for over 35 years we have the ability to help you with your grandchildren visitation matters or any other family law matter. Call the office 321-549-3162 (or text) or use the Contact form to email the office. Serving Titusville, Melbourne, Viera, Suntree, Indialantic, Indian Harbor Beach, and Palm Bay with no charge consultations by phone or in person.