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Bauer Family Law - Grandparent Rights
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Grandparent Rights
The issue of grandparent’s rights is one that is hotly debated across the country, due in part to the ever changing picture
of the modern American family.  Grandparents today have a much more active role in their grandchildren’s lives than
grandparents from just a generation ago.  Divorce, death of a parent, or other extraordinary circumstances sometimes
lead to a strain on the relationship between grandparents and their son/daughter-in-law.  Many times, a parent wants
their children to make a clean break from their ex-spouse or deceased spouse for various reasons.  Because of this very
issue, the Florida legislature enacted,  a Statute, Chapter 752 entitled “Grandparents Visitation Rights” whereby upon
the filing of a petition, grandparents were entitled to reasonable visitation if its was in the best interest’s of the child and
one of the following circumstances was present:  1) one or both parents were deceased; 2) the marriage between the
parents was dissolved; 3) a parent of the child had deserted the child; or 4) the minor child was born out of wedlock.    
This statute was later amended to state that there could be reasonable visitation even if the parents were living together
and still married.

In 1996, the constitutionality of Chapter 752 was questioned in Beagle v. Beagle, 678 So.2d 1271 (Fla. 1996).  The
Court held that it is not sufficient that grandparent visitation may be in the best interests of the child. Rather, in order for
the government to award visitation over the objections of a married parent, the grandparents must first demonstrate the
child is in harm and then prove visitation is in the child’s best interests. The Court limited its decision to those cases in
which the objecting parent or parents were still married. Thus, the Court did not render an opinion on whether awarding
visitation absent proof of harm under the other statutory scenarios, wherein the family was no longer “intact,” was
constitutional.

In 1998, a case asked the question whether the decision in Beagle applied to those cases in which the family was no
longer “intake” by reason of death of one spouse or dissolution of marriage.  The case was Von Eiff v. Azicri, 720 So.2d
510 (Fla. 1998).  The Florida Supreme Court explained that the imposition of grandparental visitation implicates a
parent’s privacy right regardless of whether the objecting parent is part of an intact family. In order for a judge to award
visitation, the grandparent must first demonstrate the child is in physical harm, which has been defined to include threat
of physical abuse, neglect or death. The Court held that the grandparents were not entitled to visitation unless they
could demonstrate the child was in physical harm and that visitation was in her best interests. Although this case
concerned grandparents seeking visitation rights upon the death of a parent, the Court’s reasoning was that
constitutional privacy rights are not limited to a parent who is part of an intact family.

However, following the Von Eiff decision, a controversy remains concerning whether a grandparent’s right to seek a
visitation award under Section 61.13(2), when the parents are amid a dissolution or custody action, is still viable. One
court has stated that the Beagle and Von Eiff decisions, which held that Chapter 752 infringes on a parent’s
constitutional right to privacy, does not alter grandparental visitation rights under Section 61.13(2). That court reasoned
that grandparents who seek visitation in a pending dissolution, custody or paternity action are not infringing upon the
parents’ right to privacy because the parents waived their privacy right by seeking judicial resolution.

Other courts, however, have disagreed and have maintained that a parent’s constitutional privacy protection to object to
grandparental visitation also applies in dissolution and custody actions. These courts reason that a parent does not
abandon his constitutional right to privacy by filing a dissolution, custody or paternity action. The Florida Supreme
Court has recently granted review in two cases which consider the issue of whether parents maintain their privacy
protection against grandparental visitation or custody requests despite filing an action with the family court. The United
States Supreme Court has also recently agreed to consider whether a Washington Supreme Court ruling that a statute
providing for third party visitation was unconstitutional was correctly decided. The outcome of these pending cases will
help to further clarify the status of grandparental visitation rights in Florida.

This material has been modified from its original source located at:  
http://rmlawyer.com/grandpar.htm
Orlando Divorce Attorneys
Bauer Family Law
5401 South Kirkman Road
Suite 310
Orlando, FL 32819

Phone: (407) 926-0255
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