Florida Laws Regarding Grandparents' Rights in Divorce Cases

by Beverly Bird

Too often, it's a sad byproduct of divorce: when parents break up, the children lose contact with one set of grandparents due to hard feelings generated by the breakdown of the marriage. States have increasingly tried to accommodate this problem by passing legislation to deal with grandparents' rights to visitation. On the books, Florida's legislative code is pro-grandparent, but in reality, the statutes have not stood up on appeal.

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Florida's History

Florida amended its statutes in 1978 to allow grandparents to petition the court for visitation as part of parents' divorce proceedings. This gave them the opportunity to prove it would be in the child's best interests to maintain a relationship with them post-divorce. The state later expanded its statutes to allow grandparents to petition for visitation apart from parental divorce if married parents prohibited contact between them and their grandchild. However, the Florida Supreme Court has repeatedly ruled that these provisions of the state's code are unconstitutional and that they interfere with parents' rights to raise their children as they see fit. This right can't be infringed on as long as parents are fit and present no harm or danger to their children.

Petitioning for Visitation

Section 752.01 of the Florida statutes is still on the books, allowing grandparents to petition for visitation. They're free to bring their problem to the court and attempt to convince the judge that reopening the door for contact is in their grandchild's best interests. Under the terms of Section 752.01, the trial court must consider whether the grandparents will attempt to interfere with the relationship between the child and her parents, their relationship with the child before the divorce, and – if the child is old enough – her wishes. Whether the court will rule over the objections of the custodial parent is another matter. Even assuming the trial court does grant grandparent visitation, if the custodial parent appeals the decision, the Florida Supreme Court has made it clear that overriding a parent's wishes is unconstitutional and that the trial court doesn't have the right to do so.

Termination of Visitation

Parental remarriage presents another issue with regard to grandparents' rights. Under Section 752.07 of the Florida statutes, if grandparents have successfully achieved visitation through a court order, a parent's remarriage doesn't automatically change those rights, even if the new stepparent adopts the child. However, the parents do have the right to petition the court to terminate grandparents' visitation under this circumstance. The court will rule according to the child's best interests, and grandparents are entitled to appear at the hearing to argue their case. Visitation can also terminate if the order originated in a different state. If a custodial parent moves to Florida and domesticates the order in this jurisdiction, a Florida court can overrule the out-of-state order if the judge feels it is not in the best interests of the child.

Military Parents

In 2010, Florida passed additional legislation specifically for military families. Section 61.13002(2) of the statutes effectively overrides the terms of Section 752. Under this new law, if a noncustodial parent is deployed, activated or assigned to service for 90 days or more, he can transfer his visitation rights to other family members – such as parents. However, the custodial parent can still object that the arrangement is not in the best interests of the child.