Grandparents’ Right to Visitation

Florida has long been known as the place people go to live out their “golden years,” and the numbers certainly support this assertion, with Florida having the largest percentage of residents over the age of 65 at 17.3% as of 2012. Many of these older residents are proud grandparents that find a lot of joy and satisfaction in the relationships they have with their grandchildren. Unfortunately, Florida is not a state that has much regard for encouraging or supporting the rights of grandparents to have access to their grandchildren. It takes a restrictive stance on when and if grandparents have any right to visitation with their grandchildren. Florida is hesitant to create greater rights for grandparents because it views such rights as an unreasonable interference with rights of parents to raise their children without intrusion from grandparents. In fact, there are only two somewhat narrow situations in which Florida law has granted grandparents limited rights to see their grandchildren. Generally, grandparents have no rights to visitation if one or both parents have custody of the child. These laws will be discussed below and considered in light of the ever-increasing elderly population fueled by Baby Boomers reaching retirement age.

If a child is removed from the home by the Florida Department of Children and Family as part of a dependency case, a court may allow visitation by the grandparent unless visitation would not be in the best interest of the child. The visits may be unsupervised and frequent and take place in the grandparent’s home, but the grandparent may be responsible for fees to transport the child. Normal displays of physical affection are allowed, as well as the exchange of gifts. If a grandparent attempts to put the child in contact with the parent or guardian in violation of court order, all visitation privileges terminate. Further, once a child is reunited with the parent or guardian, visitation rights also terminate. Factors a court may use to determine if visitation would not be in the best interest of the child include a finding or plea of guilty by the grandparent criminal charges related to removing the child from the state in violation of court order, sexual battery, lewd and lascivious behavior, indecent exposure, incest or abuse of children.

The second circumstance where grandparents may be granted visitation by a court concerns parents who are missing, dead or in a vegetative state. In order for a parent to be considered missing, the parents’ location must be unknown for 90 days and undiscoverable after a diligent search. If one parent is still living and available, the only way a grandparent will be granted visitation rights is if the grandparent can show the court that the parent was convicted of a felony or other offense that demonstrates the parent poses substantial harm to the child. If the court determines the parent is unfit or a substantial risk of harm to the child, the court can grant visitation if it is in the best interest of the child and will not harm the parent-child relationship. Some of the factors a court uses to decide if visitation with the grandparent is in the best interest of the child include: emotional ties between grandparent and grandchild; quality and length of the relationship; whether the grandparent had regular contact with the grandchild before the parent became missing, dead, or in a vegetative state; and whether the grandparent provided stability and support to the grandchild in the past.

Florida does offer temporary custody to extended family members, but the consent of both parents, if living, or a grandparent presently living with and caring the child for full-time, is a necessary prerequisite. The other option is adoption, which is a long and arduous process. It seems the law is not entirely in grandparents’ favor at the moment, but efforts are being made to extend more rights to grandparents in this area, and the laws discussed above are actually newly enacted. This could give hope to grandparents that lawmakers may be willing to grant more expansive rights in the future.

If you are a grandparent blocked from seeing your grandchildren, it is important to consult an experienced family law attorney who can determine if you may have grounds to petition for visitation. The attorneys at Stok Kon + Braverman, serving clients in the Fort Lauderdale and Boynton Beach areas, have over 50 years of combined experience in family law matters and are available to assist you in these matters.