Friday, April 20, 2007

Grandparent's Rights

I'm often asked whether grandparents have any rights to visitation under any circumstances. The answer to that question is most often no, but there are some rare exceptions here in Florida and a grandparent seeking visitation must show harm to the child. The article below taken from is a good explanation of how grandparent's visitation rights work in Florida.

In 1996, the Supreme Court of Florida ruled that a Florida statute that allowed grandparents to petition a court for visitation with grandchildren, whose parents had denied such visitation, was an unconstitutional deprivation of the parents' right to be free of governmental intrusion into the family. Now, the court has extended that rule to the portion of the statute that would allow visitation petitions when one of the parents has died,
In VonEiff vs. Azieri (Fla. Nov. 12, 1998) the court ruled that the maternal grandparents of a child whose mother had died could not be granted independent visitation rights with their grandchild over the objection of the child's father, where the father was otherwise a "loving, nurturing and fit parent."
Although the father had since remarried and his wife had adopted the child, making for all legal purposes an "Intact" family similar to that of the family in the 1996 case, the court emphasized that their decision was not at all dependent on that fact. Rather, the court ruled that the surviving parent retains all of the authority that the parents originally enjoyed. The decision turned in part on the Constitutional right of privacy set forth in the Florida Constitution. Parents enjoy a right to be free of governmental intrusion into parenting decisions unless a complainant can demonstrate threatened harm to the child. On this point the court said~
Neither the legislature nor the courts may properly intervene in parental decision making absent significant to the child threatened by or resulting from those decisions…This threshold requirement thus ensures that focus will not be on the perceived benefits of a grandparent-grandchild relationship before the need for government intervention is assessed.
The court emphasized that the statute had required courts to grant grandparent visitation if one parent was deceased, without regard to any showing of harm to the child by the denial of visitation, as long as the visitation was in the child's best interests,
The court summarized as follows-,
We recognize that the death of a biological parent may be a traumatic event for a child and that a family may deal with that tragic event in many different ways. Some parents may decide that counseling is beneficial for the Child; others may disagree, Some parents may decide that the child should spend more time with the deceased biological parent's grandparents, siblings or close friends, Others may restrict those relationships. Interaction with the grandparents may help case the pain of loss for both grandparent and child and, thus, be beneficial to the child. However, . - - it is irrelevant, to this constitutional analysis, that it might in many instances be 'better’ or 'desirable' for a child to maintain contact with a grandparent. [reference to quoted phrase omitted]
Although a news report on the case describes advocates for grandparents' rights as "outraged" by the court decision, I would expect that in cases where grandparents already maintain a solid relationship with the grandchildren at the time of a tragedy, then showing harm to the children by attempting to end that relationship would not be difficult. Social service and mental health experts will favor maintaining extended family relationships where they already exist,
In essence, this shifts the burden of persuasion from the neutral "best interests of the child" test, to the grandparents, who now must show a specific harm in the denial of visitation in their particular case, It perhaps shifts the burden of expense as well.
Just what level of harm the courts will require remains to be seen.

To read this article in its entirety, see:

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