Do Grandparents Have Visitation Rights in Florida?

Examining Florida's grandparent visitation laws.

By , Attorney

Grandparents play a unique role in their grandchildren's lives. Some parents embrace the help and wisdom that grandparents can provide. Yet in other instances, hard feelings or a grandparent's lifestyle may cause parents to limit or prevent visitation altogether.

Every state recognizes some form of grandparent visitation. If a parent is preventing visits, a grandparent has legal recourse to seek court-ordered visitation. Whether a judge ultimately awards visitation will depend on the unique circumstances of your case. This article provides an overview of grandparent visitation and custody rights in Florida. If after reading this article you have questions, contact a local family law attorney for advice.

Overview of Grandparent Visitation Laws

Each of the 50 states has its own laws regarding grandparent visitation. State laws are patterned after the landmark grandparent visitation case Troxel v. Granville. The Supreme Court held in Troxel that courts must give special weight to a parent's wishes regarding grandparent visitation. Furthermore, a court should presume that a parent is acting in a child's best interests in preventing visits unless a grandparent can prove otherwise. In other words, grandparents bear the burden of proving that visitation serves a child's best interests.

Grandparent Visitation in Florida

Grandparent visitation doesn't become an issue until a parent prohibits visitation completely. A grandparent can't ask a court for additional time with a grandchild if a parent is allowing some visits. When a parent cuts off visits, a grandparent still isn't entitled to visitation unless:

  • the child has been removed from the parent's custody, and
  • grandparent visitation serves a child's best interests.

A previous Florida statute that authorized grandparent visitation when parents divorced was held unconstitutional. Parents' fundamental rights over their own children can't be overridden except when a child will be harmed if visits don't take place. Specifically, in one Florida case the court denied a maternal grandmother's request for visitation. The children's mother died shortly after the parents had divorced. Upon the mother's death, the child's father prohibited any contact between the children and their maternal grandmother. The grandmother sought visitation, claiming that it would be in the children's best interests since their mother had died. However, the court refused to grant visitation because the father was a fit and proper parent.

In another case, the court refused to award visitation to a set of paternal grandparents. At the time they filed their visitation petition (written request), the children's family was intact—both parents were living and married to each other. Because the grandparents couldn't demonstrate the children would be harmed by the lack of time with them, the court refused their request.

When can Grandparents get Custody of a Grandchild?

Under very limited circumstances, a grandparent may be able to obtain custody of a grandchild. Typically, grandparents have little or no say in a custody proceeding involving the child's parents. However, a judge could transfer custody to a grandparent if doing so would be in the child's best interests, and:

  • the parent has been deemed unfit, or
  • the parent (or parents) poses a danger to the child.

In one Florida case, a paternal grandmother successfully challenged a Division of Child Family Services (DCFS) decision to place her twin grandchildren with a nonrelative. The children's parents were deemed unfit, and under Florida law a grandparent has the first priority for adoption when parents have lost their parental rights. The preference for grandparents should have been applied by DCFS in this case even though the grandchildren had only lived with their grandparents a very short time. The case was remanded to a lower court to assess if the children's best interests would be served by a placement with the grandparents.

In another case, a grandmother lost her challenge to gain custody of her grandchild when the child's mother was moving out of state. Because the mother was not unfit and didn't post a danger to her child, the child's grandmother had no claim to custody.

How Does Adoption Affect a Grandparent's Rights?

Adoption terminates all legal ties between a child and biological parents or grandparents, unless a stepparent or close relative adopts the child. In those situations, a grandparent may be entitled to visitation if the visitation order was in place before the adoption. However, a court can terminate a grandparent visitation order upon a stepparent or biological parent's request, unless the grandparent can show actual harm.

In one case, a grandmother was awarded visitation shortly after the child's parents divorced. The child's father subsequently remarried and the child's mother voluntarily terminated her parental rights. Following the termination, the father's second wife (stepmother) adopted the child. The court refused to reinstate the grandmother's visitation rights or consider her objection to the adoption.

Like the above case demonstrates, a grandparent's rights are always secondary to a parent's—even a stepparent's rights. Parents have a fundamental right to privacy in raising their own children. A court, or grandparent, can't intrude on that right unless there's some danger to the child. If you have additional questions about grandparent visitation in Florida, contact a local family law attorney for advice.

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