For hundreds of thousands of years, children have relationships with other adults beyond their immediate parents: aunts, uncles, close friends and, of course, grandparents.
Often grandparents become a “third parent” or more sadly the “second parent” if one parent is absent. In these scenarios, what happens when there is a custody dispute between the natural parent and a child’s grandparent?
The Florida state legislature has passed numerous laws in order to give grandparents some kind of standing to challenge a parent’s claim that the grandparent can’t have custody or even have visitation. Every single time the Florida legislature has passed a law granting grandparents rights in Florida, the Florida Supreme Court has declared the law invalid.
The reason that a grandparents’ rights cannot be granted much less enforced in Florida is that a parents rights to their children has been held to be a fundamental constitutional right under the United States and Florida constitutions.
Even in a divorce decree where both parents agree that the grandparents shall have rights, it has been held that the grandparent cannot enforce those rights in Florida. Forbes v. Chapin, 917 So 2d 948 (Fla. 4th DCA 2005)
The Florida courts have gone so far as to declare grandparents’ rights granted in other states unenforceable in Florida. Fazzini v. Davis, 98 So. 3d 98 (Fla. 2d DCA 2012)
If a child is in the custody of someone who is not a grandparent an opportunity for grandparents rights arises. A grandparent could use the various grandparents’ rights laws to pursue visitation with the child in the custody of the non-parent. This is because the non-parent guardian does not have the fundamental constitutional rights of a parent.
What about in the situation where the parent is a child herself? Can grandparents enforce their own parental rights over that teenage parent regarding the new baby? No. It has been held that the teenage mother can give the baby up for adoption without any input at all from her parents, the baby’s grandparents. Y.H. v. F.L.H., 784 So.2d 565 (Fla. 1st DCA 2001) All the teenage mother is obligated to do is to give the grandparents notice of the adoption if the child lived with them for more than six months. Fla. Stat. Sec. 63.0425
If grandparents can’t be granted rights because the parents’ rights are so fundamental then how can a parents’ rights ever be terminated…which they frequently are? There’s not a good answer for that.
In Florida, Grandparents only have enforceable rights to their grandchildren when the parents are dead or their parental rights have been terminated by the courts. In that situation the guardianship law will control. Under guardianship law, a close relative such as a grandparent can be automatically awarded guardianship if they apply for it, “a parent, brother, sister, next of kin, or other person interested in the welfare of a minor, a guardian for a minor may be appointed by the court” Fla. Stat. Sec. 744.3021. In competing claims to a child in guardianship, blood relations are given preference. Fla. Stat. Sec. 744.312(2)(a).
If a parent left in their will that they wanted a grandparent or a different person to have guardianship of the children, the court will consider that parent’s preference but will not be governed by it. The primary consideration of the court will always be “the best interests of the ward [child].”
Naples, FL, Collier County is home to many retirees but the jurisdiction to exercise grandparents’ rights will be in the county the children have lived in for the last six months.
In my personal experience, fighting for or against grandparents rights in court is an emotionally fraught spectacle. It is best for everyone to come to some kind of conclusion out of court through negotiations and perhaps not even an order. If you can come to a conclusion without an order, the arrangement you arrive at is likely to be treated as the status quo by the courts should you ever have a future disagreement.
Contact my law office in Naples, Florida to see how we can come to some kind of agreement between all parties and failing that, file the appropriate petitions in court.