As often is the case with family law questions, it depends.
Several factors may affect the answer, ranging from the health, competence or death of a parent; to the best interest of the child; to the parents’ wishes. To provide a very high-level summary, parents have significant federal and Florida constitutional privacy rights to care for, raise and guide their children. Because of this almost ironclad right, it normally takes an especially difficult situation where the child’s welfare or best interests are under threat for Florida law or courts to consider other more nontraditional arrangements that involve custody or time sharing with a grandparent or other relative.
In today’s part 1 of this post, we will look at Florida’s law that provides a way for a grandparent to ask the court for visitation rights with a grandchild, but only in quite narrow circumstances. In part 2, we will discuss other potential legal options for grandparents and other family members to seek access to a child.
What can a grandmother or grandfather do if their minor grandchild’s parent will not allow them contact with the child?
Against the backdrop of significant parental rights, the current laws allowing grandparents (including great-grandparents and step grandparents) the right in narrow circumstances to request visitation arrangements from state courts took effect in 2015.
We previously published a fairly comprehensive explanation of these statutes.
Basically, grandparental visitation rights only kick in in two extreme, emergency circumstances. One, both parents have died, are missing or are in comas. Or two, one parent has died, is missing or in a persistent vegetative state, and the other is either a felon or has another criminal conviction of violence and poses a “substantial threat of harm” to the child’s welfare or safety.
A grandparent can file a petition with the state court for visitation. Initially, the judge must first decide if the grandparent has proven “parental unfitness or significant harm to the child.” If the grandparent-petitioner does not show this, the court will dismiss the matter.
If the grandparent shows sufficient danger to the child, the judge has the option to appoint a guardian ad litem for the child. The parties must take part in mandatory mediation to see if they can resolve the dispute through negotiation (if mediation is readily available).
When the mediation process fails, the court looks at whether “clear and convincing evidence” shows:
- Parent unfitness or significant risk of harm to the grandchild
- Visitation with the grandparent would be in the grandchild’s best interest
- Grandparent visits would not “materially harm the parent-child relationship”
Legal counsel assistance
An attorney can advise a grandparent of the range of options available, depending on the circumstances of the child and the grandparent’s goals. For example, they may be able to negotiate a visitation agreement with the parent or parents short of filing a court petition.
In part 2 of this post, we explore other legal options for grandparents or other relatives seeking contact, custody or visitation with a child.