No matter how ideal a family may appear, everyone knows that all family dynamics can be complicated. Those dynamics can become more complicated when children and grandparents are involved. And this is when families are still together. When parents divorce or separate, grandparents’ relationships with their grandchildren can be severely affected. If parents are willing to agree to grandparents’ visitation, then the grandparents may sigh with relief; however,
Can Grandparents Get Visitation or Timesharing with Their Grandchildren?
Many people will not like the answer to the above question. The answer(s) to whether grandparents have visitation or custody rights to their grandchildren in Florida is: “No,” “sort of, but not really,” or , “it depends now.”
No.
In the late 1990s, a Florida statute existed which some grandparents point to as authority for “custody” rights to their grandchildren. However, that statute was deemed unconstitutional by the Florida Supreme Court. The rationale behind this is that parents have a fundamental right to raise their children. Unless there are very compelling factors, the government (i.e., the Florida legislature or the courts) will not interfere in this right belonging to parents. Thus, although various states answer the above question in the affirmative, Florida historically has been reluctant to fully grant visitation or timesharing to grandparents or other third parties.
Sort of, But Not Really.
If certain circumstances are met, grandparents may obtain “custody” of their grandchildren pursuant to various statutes, such as Florida Statutes, §751.01, “Temporary Custody of Minor Children by Extended Family” or Florida Statutes, §39.501, “Petition for Dependency.” Florida Statute, §751.01 explicitly recognizes that extended family members may be taking care of children full-time because the children’s parents are not able to provide such care. In order to obtain temporary custody or concurrent custody (extended family members are awarded custodial rights along with the child’s parent or parents), the extended family member must have the written, notarized consent of both parents, or if either of the parents raise objections, then the extended family member must show that the parents have abused, abandoned, or neglected the child as defined in the dependency statutes, Chapter 39.
The title of Florida Statute, 751.01 clearly states that this situation is temporary. Regarding concurrent custody, the order granting concurrent custody cannot “eliminate or diminish the custodial rights of the child’s parent or parents.” Further, the parents can get physical custody of the child at any time, subject to the court providing a transition plan of the return of the child to his or her parents. Regarding temporary custody, either parent can request the court to modify or terminate the order granting temporary custody “at any time.” Lastly, if the temporary custody order was granted because the parent was found to be an “unfit parent,” and the court later finds this is no longer the case, the court “shall terminate the order.” Therefore, grandparents may obtain “custody” of grandchildren pursuant to the temporary custody or dependency statute; however, grandparents should understand these may not provide long-term, stable options.
It Depends.
In 2022, many grandparents were hopeful that the tides had changed toward expanded visitation rights. However, Florida Statutes, §752.011, “Grandparental Visitation Rights, only affords grandparents visitation in very specific and unfortunate circumstances. Pursuant to the statute, a grandparent can petition the court for visitation with their grandchild when both parents of the child are deceased, missing, or in a persistent vegetative state, or where one parent meets one of this criteria and the other parent has been convicted of a crime that demonstrates behavior that would pose a substantial threat of harm to the child. In this case, the court holds a hearing to determine whether the grandparent has shown that the surviving parent is unfit or there is a potential of major harm to the child. However, the statute also provides that if one parent was criminally responsible for the death of the other parent, then there is a presumption for granting visitation to the grandparent if they are the parent of the deceased parent of the child.
Following the hearing, if the grandparent cannot demonstrate either of these things, then the court will dismiss the petition. On the other hand, if the unfitness of the parent or major harm to the child is demonstrated by the grandparent, then the court will order the parties to mediation in an attempt to work things out. The next step should the parties be unable to reach an agreement at mediation is to hold a final hearing. The court would determine whether to award the grandparent visitation based on the best interest of the minor child by evaluating several factors such as the emotional ties between the grandparent and the child, the level of the grandparent’s involvement in the child’s life, and the reasons why the parent of the child had ended the grandparent’s contact with the child. Importantly, the court must also determine that the grandparent visitation will not substantially harm the child’s relationship with their parent.
Grandparents often are vital parts of their grandchildren’s lives. While courts in Florida recognize the value of grandparents’ contributions, as always, the paramount consideration is the best interest of the children. Also given much weight is a parent’s fundamental and constitutional right to raise their children. Because of these competing interests, grandparents attempting to obtain visitation or timesharing with their grandchildren is a uniquely challenging endeavor. If you would like to discuss grandparents’ rights or any other family law matter, please schedule a consultation today.
