Do Grandparents Have any Visitation Rights?

The images people usually conjure up when issues of child custody and visitation are up for discussion are mainly limited to thoughts of parents trying to work out when and where child exchanges take place and how much time each parent is permitted to see the child. However, families are made up of more than just parents and children, and these extended family members, including grandparents, aunts/uncles and cousins, also face the possibility of losing contact with the divorcing couple’s children. This separation can be especially difficult for grandparents, as many play a big role in the lives of young children and form strong emotional attachments as a result. Florida, like many states, adheres to public policy that gives parents broad latitude to make decisions about who can see their children, believing such control is part of their fundamental right to rear their children free from the interference of others. A recent article in the Miami Herald looks at members of a support group for grandparents alienated from their grandchildren and discusses the lack of legal support for granting grandparents visitation rights. In an effort to inform grandparents about their legal rights, a discussion of the limited circumstances that must exist in order for grandparents to have any standing to request visitation under Florida law will appear below.

The Florida legislature recently passed an act that grants grandparents the right to petition a court for visitation with their grandchildren under very narrow circumstances. Specifically, both parents must be missing, dead or in a persistent vegetative state, rendering them unable to care for their children. Further, if only one parent is missing, dead or in a vegetative state, the other parent must be convicted of a felony or violent crime that demonstrates behavior capable of posing a substantial risk to a minor child. As a starting point, the grandparent must successfully show the court the parents are unfit or pose a significant risk of physical harm to the child in order for the process to move forward. If the first step is achieved, the court will next order the case to mediation, and if that process fails to resolve the issue, the court will hold a final hearing to determine if visitation should be allowed. At the hearing the court will decide three things:

• whether the parent is unfit or poses significant harm to the child;
• whether visitation in best interest of the child; and
• whether visitation would considerably harm the parent-child relationship.

If the court finds in favor of the grandparent on all three issues, reasonable visitation will be ordered. These petitions may only be filed once every two years, except under extraordinary circumstances.

The other situation where a grandparent may ask the court for visitation is when a grandchild is removed from the physical custody of the parent and becomes a dependent of the state. Visitation will be ordered unless it is not in the best interests of the child or would interfere with some aspect of the case plan. The court can order visitation that is unsupervised, frequent and ongoing. However, if the grandparent attempts to facilitate a meeting between the child and parent in violation of court order, the visitation will be automatically terminated. Further, if the child is returned to the parent’s physical custody, visitation rights also automatically terminate.

Establishing and wishing to preserve a bond with children and grandchildren is the desire of almost every parent and grandparent. Sometimes, though, decisions are made and changes happen that affect the quality of these relationships, and it is at this point advice from lawyer is helpful and necessary to retaining and enforcing your rights to maintain contact with your family. Stok Kon + Braverman represent clients in Fort Lauderdale and Boynton Beach in a variety of family law matters. Contact us to schedule a confidential consultation.