Grandparents’ Rights

The Fight for Grandparents’ Visitation Rights

Should grandparents have visitation rights to their grandchildren? Many say they should. After all, a divorce limits both parents’ time with their shared children, and this can therefore mean that a grandparent, who once was close to her grandchildren, is denied any relationship with them at all. Many grandparents play an integral role in their grandchildren’s lives and having no rights can be a bitter pill to swallow. As the numbers of grandparents increase in Florida, there is a stronger fight by some for grandparents to enjoy such rights.

But what about a parent’s fundamental, constitutional right to parent his child without the interference of others? A parent has the ultimate right to control the upbringing of his children, subject only to the identical right of the children’s other parent, and arguably, a law that allows anyone to petition a court for visitation rights with children over parental objection unconstitutionally infringes on that right. As a parent, what if you have a different style of parenting than your child’s grandparents, your own parents, as so many do? Shouldn’t the parent/child relationship override any other relationship as long as the child is not in harm?

What Does the Law Say?

In fact, the Florida Supreme Court believes that it should. In 1996, in Beagle v. Beagle, the Court declared the grandparents’ rights statute unconstitutional because it invaded the fundamental privacy rights of parents and constituted impermissible state interference with parental rights that are protected by the Constitution of the State of Florida. In this case, the Court found that there was no evidence of the child suffering any harm by the denial of grandparent visitation rights. Thus, the Beagle Court concluded a court could not award grandparent visitation rights when there was an intact family, at least one of the parents objected, and there was no evidence of the child suffering any harm.

However, in extreme situations, grandparents do enjoy such rights. Florida Statute § 752.011 allows for grandparent timesharing if both parents are deceased, missing, or in a persistent vegetative state or if one parent is deceased, missing, or in a vegetative state and the other parent has been convicted of a felony or an offense of violence evincing behavior that poses a substantial threat of harm to the minor child. While this statute gives grandparents rights in extreme circumstances, a substantial change in circumstances can lead to a change of custody.

Lengthy Parental Leave; Can Grandparents Cover?

In a case when a child is not in harm’s way, do grandparents have any rights? According to Florida Statute § 61.13002(2), if a parent is on military duty for longer than 90 days, that parent may designate a family member, a stepparent, or a relative of the child by marriage to exercise timesharing with the child on the parent’s behalf. This statute gives grandparents rights to a grandchild that she didn’t always have.

But what about non-military parents? There are many reasons why a parent may be away for longer than 90 days. Perhaps his work requires it. Perhaps his health demands it. Shouldn’t grandparents have the same rights in these situations as they do when a parent is in the military? If the state is willing to offer visitation rights when a parent is away for 90 days, perhaps the reason for being called away shouldn’t matter. While the legislatures seem to be patriotic in enacting this statute, maybe it should apply to all instead of merely to some.

Ultimately, a parent should have the right to parent his child if he wants to and is not harming the child. While grandparent’s rights are limited in Florida, parenthood is a constitutional right that should not be ignored in most situations.

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About this week’s author, Joryn Jenkins.

Joryn, attorney and Open Palm Founder, began her own firm here in Tampa after a 14-year career in law, two of which she served as a professor of law at Stetson University. She is a recipient of the prestigious A. Sherman Christensen Award, an honor bestowed in the United States Supreme Court upon those who have provided exceptional leadership in the American Inns of Court Movement. For more information on Joryn’s professional experience, take a look at her resume.

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