House Bill 0423

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    Florida House of Representatives - 2000                 HB 423

        By Representatives Kelly, Bainter, Wiles, Melvin, Casey
    and Harrington





  1                      A bill to be entitled

  2         An act relating to grandparents' visitation

  3         rights; creating s. 752.011, F.S.; providing

  4         for court-ordered grandparent visitation under

  5         certain circumstances; providing for

  6         appointment of a guardian ad litem and family

  7         mediation if the court makes a preliminary

  8         finding that the minor is threatened with

  9         demonstrable significant mental or emotional

10         harm without visitation; requiring

11         court-ordered evaluation of the child if

12         mediation fails; providing for a hearing in

13         which the determination of demonstrable

14         significant mental or emotional harm to the

15         minor will be made; providing criteria for such

16         a determination; providing for attorney's fees

17         and costs; applying the Uniform Child Custody

18         Jurisdiction Act; repealing s. 752.01, F.S.,

19         relating to grandparental visitation; amending

20         s. 61.13, F.S., to conform to the act;

21         encouraging consolidation of actions under ss.

22         61.13, 752.011, F.S.; amending ss. 752.015,

23         752.07, F.S., to conform cross-references;

24         providing an effective date.

25

26  Be It Enacted by the Legislature of the State of Florida:

27

28         Section 1.  Section 752.011, Florida Statutes, is

29  created to read:

30         752.011  Action by grandparent for right of visitation;

31  when petition shall be granted.--

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  1         (1)  A grandparent of a minor may petition for

  2  visitation with that minor if:

  3         (a)  One or both of the parents of the minor are

  4  deceased;

  5         (b)  The marriage of the parents of the minor has been

  6  dissolved, whether or not a dissolution action is pending;

  7         (c)  A parent of the minor has deserted the minor;

  8         (d)  The minor was born out of wedlock and not later

  9  determined to be a minor born within wedlock as provided in s.

10  742.091;

11         (e)  The minor is living with both natural parents who

12  are still married to each other, whether or not there is a

13  broken relationship between either or both parents of the

14  minor and the grandparents, and either or both parents have

15  used their parental authority to prohibit a relationship

16  between the minor and the grandparents; or

17         (f)  A deceased parent of the minor has made a written

18  testamentary statement requesting that there be visitation

19  between his or her surviving minor child and the grandparent

20  or grandparents.

21         (2)  Upon the filing of a petition by a grandparent for

22  visitation rights, the court shall hold a preliminary hearing

23  to find whether there is evidence that the minor is suffering

24  or is threatened with suffering demonstrable significant

25  mental or emotional harm as a result of a parental decision

26  not to permit visitation or contact with the grandparent.

27  Absent such a finding, the court shall dismiss the petition

28  and may award reasonable attorney's fees and costs to be paid

29  by the petitioner to the respondent.

30         (3)  If the court finds that there is evidence that the

31  minor is suffering or is threatened with suffering

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  1  demonstrable significant mental or emotional harm as a result

  2  of a parental decision not to permit visitation or contact

  3  with the grandparent, the court may appoint a guardian ad

  4  litem and shall order the matter to family mediation pursuant

  5  to chapter 44 and Rules 12.740 and 12.741, Fla. Fam. L.R.P.

  6         (4)  If mediation fails to yield a resolution, the

  7  court shall order a psychological evaluation of the minor

  8  pursuant to Rule 12.363, Fla. Fam. L.R.P., absent the

  9  availability of comparable evidence of the findings expected

10  from such an evaluation.

11         (5)  After a hearing on the matter, the court may award

12  reasonable rights of visitation to the grandparent with

13  respect to the minor if the court finds that:

14         (a)  The minor is suffering or is threatened with

15  suffering demonstrable significant mental or emotional harm as

16  a result of a parental decision not to permit visitation or

17  contact with the grandparent and that visitation with the

18  grandparent will alleviate or mitigate the harm; and 

19         (b)  The visitation will not materially harm the

20  parent-child relationship.

21         (6)  In assessing demonstrable significant mental or

22  emotional harm as those terms are used in this chapter, the

23  court shall consider the totality of the circumstances

24  affecting the mental and emotional well-being of the minor,

25  including:

26         (a)  The love, affection, and other emotional ties

27  existing between the minor and the grandparent, including

28  those based upon a relationship that has been permitted

29  previously by one or more of the minor's parents.

30         (b)  The length and quality of the prior relationship

31  between the minor and the grandparent, including the extent to

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  1  which the grandparent has been involved in providing regular

  2  care and support of the minor.

  3         (c)  Whether the grandparent has established or

  4  attempted to establish ongoing personal contact with the

  5  minor.

  6         (d)  The reasons for which a parent or parents have

  7  made a decision to end contact or visitation between the minor

  8  and the grandparent which was permitted previously by the

  9  parent or parents.

10         (e)  Whether there has been significant emotional or

11  mental trauma to the minor as the result of disruption in the

12  family unit due to divorce, abandonment by a parent, or

13  disability or death of a parent, sibling, or other household

14  member, for which the minor has derived support and stability

15  from the grandparental relationship and whether the

16  continuation of that support and stability is likely to

17  prevent further injury.

18         (f)  The existence or threat of mental injury to the

19  minor as defined in s. 39.01.

20         (g)  When one parent is deceased, whether grandparent

21  visitation will help maintain or facilitate contact between

22  the minor and the deceased parent's extended family of origin

23  such that significant emotional or mental trauma to the minor

24  from loss of additional family relationships is mitigated.

25         (h)  The present mental, physical, and emotional needs

26  and health of the minor.

27         (i)  The present mental, physical, and emotional health

28  of the grandparent.

29         (j)  The recommendations of the minor's guardian ad

30  litem.

31

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  1         (k)  The results of the psychological evaluation of the

  2  minor pursuant to Rule 12.363, Fla. Fam. L.R.P.

  3         (l)  The preference of the minor if the minor is

  4  determined to be of sufficient maturity to express a

  5  preference.

  6         (m)  When a parent is deceased, any written

  7  testamentary statement by the deceased parent requesting that

  8  visitation with the grandparent be granted or stating a belief

  9  that such visitation would reduce or mitigate mental or

10  emotional harm to the minor as a result of the parent's death.

11  The absence of such a testamentary statement may not be

12  construed as evidence that the deceased parent would have

13  objected to the requested visitation.

14         (n)  Such other factors as the court considers

15  necessary in making this determination.

16         (7)  In assessing whether granting a petition brought

17  under this chapter will cause harm to the parent-child

18  relationship, the court shall consider the totality of the

19  circumstances affecting the parent-child relationship,

20  including:

21         (a)  Whether there have been previous disputes between

22  the grandparent and the parents over childrearing or other

23  matters related to the care and upbringing of the minor;

24         (b)  Whether visitation would in a material manner

25  interfere with or compromise parental authority;

26         (c)  Whether visitation can be arranged in such a

27  manner as not to materially detract from the parent-child

28  relationship, including the quantity of time available for

29  enjoyment of the parent-child relationship and any other

30  consideration related to disruption of the schedule and

31  routines of the parents' and the minor's home lives;

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  1         (d)  Whether visitation is being sought for the primary

  2  purpose of continuing or establishing a relationship with the

  3  minor with the intent that the minor benefit from the

  4  relationship;

  5         (e)  Whether the requested visitation would expose the

  6  minor to conduct, moral standards, experiences, or other

  7  factors that are inconsistent with influences provided by the

  8  parent;

  9         (f)  The nature of the relationship between the parents

10  and the grandparent;

11         (g)  The reasons for which a parent or parents have

12  made a decision to end contact or visitation between the minor

13  and the grandparent which has been permitted previously by

14  that parent or parents;

15         (h)  The psychological toll of visitation disputes on

16  the minor in the particular circumstances; and

17         (i)  Such other factors as the court considers

18  necessary in making this determination.

19         (8)  Sections 61.1302-61.1348, the Uniform Child

20  Custody Jurisdiction Act, apply to actions brought under this

21  chapter.

22         (9)  If separate actions under this section and s.

23  61.13 are pending concurrently, courts are strongly encouraged

24  to consolidate the actions in order to minimize the burden of

25  litigation of visitation rights on the minor and the parties.

26         (10)  An order of grandparent visitation may be

27  modified upon a showing of substantial change in circumstances

28  or a showing that visitation is causing material harm to the

29  parent-child relationship.

30         (11)  An original action requesting visitation rights

31  under this chapter may be filed by any grandparent only once

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  1  during any 2-year period, except on good cause shown of

  2  imminent or existing demonstrable significant mental or

  3  emotional harm to a minor caused by a parental decision to

  4  deny or limit contact or visitation between a minor and

  5  grandparent, which was not known to the grandparent at the

  6  time of filing an earlier action.

  7         (12)  This section does not provide for grandparental

  8  visitation rights for minors placed for adoption under chapter

  9  63 except as provided in s. 752.07 with respect to adoption by

10  a stepparent.

11         (13)  Section 57.105 applies to actions brought under

12  this chapter.

13         Section 2.  Section 752.01, Florida Statutes, is

14  repealed.

15         Section 3.  Subsection (2) of section 61.13, Florida

16  Statutes, is amended to read:

17         61.13  Custody and support of children; visitation

18  rights; power of court in making orders.--

19         (2)(a)  The court shall have jurisdiction to determine

20  custody, notwithstanding that the child is not physically

21  present in this state at the time of filing any proceeding

22  under this chapter, if it appears to the court that the child

23  was removed from this state for the primary purpose of

24  removing the child from the jurisdiction of the court in an

25  attempt to avoid a determination or modification of custody.

26         (b)1.  The court shall determine all matters relating

27  to custody of each minor child of the parties in accordance

28  with the best interests of the child and in accordance with

29  the Uniform Child Custody Jurisdiction Act. It is the public

30  policy of this state to assure that each minor child has

31  frequent and continuing contact with both parents after the

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  1  parents separate or the marriage of the parties is dissolved

  2  and to encourage parents to share the rights and

  3  responsibilities, and joys, of childrearing. After considering

  4  all relevant facts, the father of the child shall be given the

  5  same consideration as the mother in determining the primary

  6  residence of a child irrespective of the age or sex of the

  7  child.

  8         2.  The court shall order that the parental

  9  responsibility for a minor child be shared by both parents

10  unless the court finds that shared parental responsibility

11  would be detrimental to the child. Evidence that a parent has

12  been convicted of a felony of the third degree or higher

13  involving domestic violence, as defined in s. 741.28 and

14  chapter 775, or meets the criteria of s. 39.806(1)(d), creates

15  a rebuttable presumption of detriment to the child. If the

16  presumption is not rebutted, shared parental responsibility,

17  including visitation, residence of the child, and decisions

18  made regarding the child, may not be granted to the convicted

19  parent. However, the convicted parent is not relieved of any

20  obligation to provide financial support. If the court

21  determines that shared parental responsibility would be

22  detrimental to the child, it may order sole parental

23  responsibility and make such arrangements for visitation as

24  will best protect the child or abused spouse from further

25  harm. Whether or not there is a conviction of any offense of

26  domestic violence or child abuse or the existence of an

27  injunction for protection against domestic violence, the court

28  shall consider evidence of domestic violence or child abuse as

29  evidence of detriment to the child.

30         a.  In ordering shared parental responsibility, the

31  court may consider the expressed desires of the parents and

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  1  may grant to one party the ultimate responsibility over

  2  specific aspects of the child's welfare or may divide those

  3  responsibilities between the parties based on the best

  4  interests of the child. Areas of responsibility may include

  5  primary residence, education, medical and dental care, and any

  6  other responsibilities that the court finds unique to a

  7  particular family.

  8         b.  The court shall order "sole parental

  9  responsibility, with or without visitation rights, to the

10  other parent when it is in the best interests of" the minor

11  child.

12         c.  The court may award the grandparents visitation

13  rights with a minor child pursuant to the criteria set forth

14  in s. 752.011 if it is in the child's best interest.

15  Grandparents have legal standing to seek judicial enforcement

16  of such an award. This section does not require that

17  grandparents be made parties or given notice of dissolution

18  pleadings or proceedings, nor do grandparents have legal

19  standing as "contestants" as defined in s. 61.1306. However,

20  if separate actions under this section and s. 752.011 are

21  pending concurrently, courts are strongly encouraged to

22  consolidate the actions in order to minimize the burden of

23  litigation of visitation rights on the child. A court may not

24  order that a child be kept within the state or jurisdiction of

25  the court solely for the purpose of permitting visitation by

26  the grandparents.

27         3.  Access to records and information pertaining to a

28  minor child, including, but not limited to, medical, dental,

29  and school records, may not be denied to a parent because the

30  parent is not the child's primary residential parent.

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  1         (c)  The circuit court in the county in which either

  2  parent and the child reside or the circuit court in which the

  3  original award of custody was entered have jurisdiction to

  4  modify an award of child custody. The court may change the

  5  venue in accordance with s. 47.122.

  6         (d)  No presumption shall arise in favor of or against

  7  a request to relocate when a primary residential parent seeks

  8  to move the child and the move will materially affect the

  9  current schedule of contact and access with the secondary

10  residential parent.  In making a determination as to whether

11  the primary residential parent may relocate with a child, the

12  court must consider the following factors:

13         1.  Whether the move would be likely to improve the

14  general quality of life for both the residential parent and

15  the child.

16         2.  The extent to which visitation rights have been

17  allowed and exercised.

18         3.  Whether the primary residential parent, once out of

19  the jurisdiction, will be likely to comply with any substitute

20  visitation arrangements.

21         4.  Whether the substitute visitation will be adequate

22  to foster a continuing meaningful relationship between the

23  child and the secondary residential parent.

24         5.  Whether the cost of transportation is financially

25  affordable by one or both parties.

26         6.  Whether the move is in the best interests of the

27  child.

28         Section 4.  Section 752.015, Florida Statutes, is

29  amended to read:

30         752.015  Mediation of visitation disputes.--It shall be

31  the public policy of this state that families resolve

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  1  differences over grandparent visitation within the family. It

  2  shall be the further public policy of this state that when

  3  families are unable to resolve differences relating to

  4  grandparent visitation that the family participate in any

  5  formal or informal mediation services that may be available.

  6  When families are unable to resolve differences relating to

  7  grandparent visitation and a petition is filed pursuant to s.

  8  752.011 752.01, the court shall, if such services are

  9  available in the circuit, refer the case to family mediation

10  in accordance with rules promulgated by the Supreme Court.

11         Section 5.  Section 752.07, Florida Statutes, is

12  amended to read:

13         752.07  Effect of adoption of child by stepparent on

14  right of visitation; when right may be terminated.--When there

15  is a remarriage of one of the natural parents of a minor child

16  for whom visitation rights may be or may have been granted to

17  a grandparent pursuant to s. 752.011 752.01, any subsequent

18  adoption by the stepparent will not terminate any

19  grandparental rights. However, the court may determine that

20  termination of such visitation rights should be terminated

21  based upon the standards for granting such visitation which

22  are set forth in s. 752.011 is in the best interest of the

23  child and rule accordingly, after affording the grandparent an

24  opportunity to be heard.

25         Section 6.  This act shall take effect July 1, 2000.

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  2                          SENATE SUMMARY

  3
      Provides for court-ordered grandparent visitation rights
  4    under described circumstances. Provides for appointment
      of a guardian ad litem and family mediation if the court
  5    makes a preliminary finding that a minor is threatened
      with significant mental or emotional harm if
  6    grandparental visitation is not granted, and requires
      court-ordered evaluation of the child if mediation fails.
  7    Provides for a hearing in which the finding that there is
      a threat of such harm to the minor will be made. Provides
  8    for the application of the Uniform Child Custody
      Jurisdiction Act. (See bill for details.)
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