The State of Grandparent’s Rights in Florida & Recent Case Law

Posted on Aug 7, 2012

The State of Grandparent’s Rights in Florida & Recent Case Law

We live in a Country, and a State that values and fiercely protects our individual constitutional rights to be free from governmental interference. The public reaction to the recent health care bill is a glaring example of the passion with which many people oppose such interference.

In Florida, Grandparents have no rights to custody of their grandchildren. Our courts will enter Orders granting Grandparents temporary custody of children under certain limited circumstances, such as abuse and/or neglect. Otherwise, they will dismiss a case filed by Grandparents for visitation or custody, as an infringement on the constitutional rights of the parents to rear their children without intrusion.

Outside of Florida, some states allow Grandparents the ability to intervene in Divorce or custody cases, and to at least obtain visitation. Where grandparents have been granted these rights in other states, Florida courts will honor the decision of the other state by enforcing the provisions. The most recent case on this issue, however, Fazzini vs. Davis, 37 Fla L. Weekly D1659a ( 2012), indicates that even the granting of rights in other states is subject to attack and invalidation in Florida Courts.

In the Fazzini case, the parents of a three month old child resided in the State of Virginia when the Mother died, tragically, in a car accident. The Father was on active duty in the military and chose to place the child with his parents in Florida until he could obtain a discharge from active duty. In the interim, the Maternal Grandmother sued the Father in Virginia for custody/visitation of the child, and the Father agreed that she should be granted certain visitation rights with the child. An Order was entered by the Virginia Court granting the Maternal Grandmother visitation.

When the Father obtained his discharge from active duty, he relocated to Florida and the child returned to his full-time care. He remarried and his new Wife eventually adopted the child. The relationship between the Father and the Maternal Grandmother became more strained and the father sought to modify the Virginia Court Order and to terminate the Grandmother’s right to see the child under the Virginia Order.

Under Florida law, the Father was required to domesticate and register the Virginia Court Order to determine if Florida could hear the case. Eventually, Virginia relinquished its jurisdiction over the case and, under Florida law, the Father was required to prove that there had been a “substantial change in circumstances” in order to obtain a modification of the Virginia Order.
The factual basis for the Father’s request to terminate the Grandmother’s right to visitation was, in part, because the maternal grandmother was threatening to tell the child, who was too young to know her biological mother, that her step-mother was not her real mother. The child was, at the time of the suit in Florida, only three (3) years old and the Father did not believe the Grandmother’s intended conduct was in the best interest of the child.

Ultimately, the Florida Court determined that the Father had sufficiently proven that there was an unanticipated substantial change and that the Maternal Grandmother’s visitation rights should be terminated.

Although I do not have any knowledge about the facts of this case other than what was reported, I can’t help but consider the impact this decision will have on the child, long-term, and the suffering it will cause for the Grandmother, who has already lost her daughter. Because the parties each took an unyielding position, the Court was forced to make a ruling. It strikes me that if the parties had truly considered the best interest of the child they would have been able to have reached an agreement that was in the best interest of this child. If, perhaps, the Grandmother had acknowledged and respected the father’s request not to tell a three year old innocent child that her step-mother was not her real mother– if she had respected and acknowledged that perhaps she was not the only one who suffered with the loss of her daughter, her compassion may have resulted in continued contact with her granddaughter. Conversely, the Father could have acknowledged and had compassion for this grandmother who had suffered the loss of her daughter and who was, perhaps in a maladaptive way, trying to maintain contact with her closest living representation. Absent serious mental illness or psychosis of the parties, it seems to me that this case could have been amicably resolved with the assistance of a skilled mediator, mental health counselor or therapist. Family law cases are fundamentally different and require a fundamentally different approach than the winner-takes-all approach of civil matters, in which property rights and monetary interests are decided.

It is tragic that Grandparents have no rights and that parties to litigation get so caught up in winning that they cannot truly grasp the suffering of others. The warning to Grandparents is to foster a loving relationship with your children and their spouses, even if you disagree with them. The warning to Parents is to recognize and acknowledge that you are creating memories and experiences for your children that will be with them for the rest of their lives. In my opinion, there is no such thing as too many people to love and to nurture your child. Life provides us with tragedies over which we have no control, so why create them unnecessarily.