Grandma got run over by a ... court order?

Limiting a child's contact with nonparty family members in Florida divorce

Florida courts have said that a parent has a state constitutional right to privacy that includes the right to direct the care and control of their child, and that this includes "the right to control visitation with relatives," according to the case In re Temporary Custody of L.M. The U.S. Supreme Court has held that the constitutional rights of parents in this regard severely limit the requests of third parties to visitation with children over parental objections.

These parental constitutional rights to control their children though become complex when the two parents are ex-spouses and disagree about what care and control is appropriate, including visitation with extended family.

(In this context, we have posted in this space before about Florida's severely restrictive law governing grandparent visitation rights.)

So, if you are a Florida parent worried about your kids hanging out with members of your ex's extended family during holiday gatherings, you do have legal rights to assert your concerns. Unless your divorce decree (which could incorporate any settlement agreement you reached with your ex-spouse) says that those family members have visitation rights, you can ask the court for an order to restrict contact or visitation with a certain person.

You could also ask for a modification to your divorce decree in this regard if there are significant changes in circumstances.

However, the restricted visitation order would have to be in the best interests of the child and the parent requesting the limitation would need to submit "competent, substantial evidence" of the reason it would be best for the child's interests to not have contact with the family member, explained the court in Lovell v. Lovell.

In that case, the Florida trial court had ordered that when the children were with their father, his new wife - of whom the kids were not fond - not have contact with the children. On appeal, the court said that the evidence before the trial court did not support this restriction on the new wife. Instead, it observed that "there is scant evidence that being in the presence of the new wife is detrimental to the welfare of the children."

While emotions ran high for all involved because the kids blamed the new wife for the breakup of their parents' marriage, she had not harmed the children. There was also expert - but disputed - evidence that the wife may have tried to alienate the kids from their father.  

The Lovell court said that because the restriction had major impact on the father's "private life," the appeals court could only uphold it if proper evidence supported that the visitation restriction was necessary to protect the child's best interests. The court reversed the restriction, citing insufficient evidence.

The balancing of the two parents' interests in raising the children can be complicated and any parent facing this issue should seek advice and representation from a respected family lawyer.

Of course, if the third-party relative presents a risk of violence or abuse, the parent can seek a protective order.

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  • The Law Office of Daniel E. Forrest represents individuals in Fort Lauderdale in high-asset divorce matters. Daniel Forrest is board-certified family lawyer and mediator serving the South Florida area.
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