HB 1107 2003
1	A bill to be entitled
2	An act relating to children and families; creating s.
3	752.011, F.S.; providing for court-ordered visitation for
4	grandparents and great-grandparents under certain
5	circumstances; providing for appointment of a guardian ad
6	litem and family mediation if the court makes a
7	preliminary finding that the minor is threatened with
8	demonstrable significant mental or emotional harm without
9	such visitation; requiring court-ordered evaluation of the
10	child if mediation fails; providing for a hearing to
11	determine whether the minor is threatened with
12	demonstrable significant mental or emotional harm;
13	providing criteria for such a determination; providing for
14	attorney's fees and costs; applying the Uniform Child
15	Custody Jurisdiction and Enforcement Act; repealing s.
16	752.01, F.S., relating to grandparental visitation;
17	encouraging consolidation of actions under ss. 61.13,
18	752.011, F.S.; amending ss. 752.015, 752.07, F.S., to
19	conform cross-references; amending s. 39.01, F.S.;
20	including references to great-grandparents in definitions
21	relating to dependent children; amending s. 39.509, F.S.;
22	providing for great-grandparents' visitation rights;
23	amending ss. 39.801, 63.0425, F.S.; providing for a great-
24	grandparent's right to adopt; amending s. 61.13, F.S.;
25	providing for great-grandparents' visitation rights and
26	standing with regard to evaluating custody arrangements;
27	conforming this section to provisions of this act;
28	amending s. 63.172, F.S.; conforming references relating
29	to great-grandparental visitation rights under ch. 752,
30	F.S.; providing an effective date.
31
32	Be It Enacted by the Legislature of the State of Florida:
33
34	Section 1. Section 752.011, Florida Statutes, is created
35	to read:
36	752.011 Action by grandparent or great-grandparent for
37	right of visitation; when petition shall be granted.--
38	(1) A grandparent or great-grandparent of a minor may
39	petition for visitation with that minor if:
40	(a) One or both of the parents of the minor are deceased;
41	(b) The marriage of the parents of the minor has been
42	dissolved, whether or not a dissolution action is pending;
43	(c) A parent of the minor has deserted the minor;
44	(d) The minor was born out of wedlock and not later
45	determined to be a minor born within wedlock as provided in s.
46	742.091;
47	(e) The minor is living with both natural parents who are
48	still married to each other, whether or not there is a broken
49	relationship between either or both parents of the minor and the
50	grandparents or great-grandparents, and either or both parents
51	have used their parental authority to prohibit a relationship
52	between the minor and the grandparents or great-grandparents; or
53	(f) A deceased parent of the minor has made a written
54	testamentary statement requesting that there be visitation
55	between his or her surviving minor child and the grandparent or
56	great-grandparent.
57	(2) Upon the filing of a petition by a grandparent or
58	great-grandparent for visitation rights, the court shall hold a
59	preliminary hearing to find whether there is evidence that the
60	minor is suffering or is threatened with suffering demonstrable
61	significant mental or emotional harm as a result of a parental
62	decision not to permit visitation or contact with the
63	grandparent or great-grandparent. Absent such a finding, the
64	court shall dismiss the petition and shall award reasonable
65	attorney's fees and costs to be paid by the petitioner to the
66	respondent.
67	(3) If the court finds that there is evidence that the
68	minor is suffering or is threatened with suffering demonstrable
69	significant mental or emotional harm as a result of a parental
70	decision not to permit visitation or contact with the
71	grandparent or great-grandparent, the court may appoint a
72	guardian ad litem and shall order the matter to family mediation
73	as provided in chapter 44 and Rules 12.740 and 12.741 of the
74	Florida Family Law Rules of Procedure.
75	(4) When mediation fails to yield a resolution, the court
76	shall order a psychological evaluation of the minor pursuant to
77	Rule 12.363, Fla. Fam. L.R.P., if comparable evidence of the
78	findings expected from such an evaluation is unavailable.
79	(5) After a hearing on the matter, the court may award
80	reasonable rights of visitation to the grandparent or great-
81	grandparent with respect to the minor if the court finds that:
82	(a) There is clear and convincing evidence that the minor
83	is suffering or is threatened with suffering demonstrable
84	significant mental or emotional harm as a result of a parental
85	decision not to permit visitation or contact with the
86	grandparent or great-grandparent and that visitation with the
87	grandparent or great-grandparent will alleviate or mitigate the
88	harm; and
89	(b) That the visitation will not materially harm the
90	parent-child relationship.
91	(6) In assessing demonstrable significant mental or
92	emotional harm as those terms are used in this chapter, the
93	court shall consider the totality of the circumstances affecting
94	the mental and emotional well-being of the minor, including:
95	(a) The love, affection, and other emotional ties existing
96	between the minor and the grandparent or great-grandparent,
97	including those based upon a relationship that has been
98	permitted previously by one or more of the minor's parents.
99	(b) The length and quality of the prior relationship
100	between the minor and the grandparent or great-grandparent,
101	including the extent to which the grandparent or great-
102	grandparent has been involved in providing regular care and
103	support of the minor.
104	(c) Whether the grandparent or great-grandparent has
105	established or attempted to establish ongoing personal contact
106	with the minor.
107	(d) The reasons for which a parent or parents have made a
108	decision to end contact or visitation between the minor and the
109	grandparent or great-grandparent which was permitted previously
110	by the parent or parents.
111	(e) Whether there has been demonstrable significant mental
112	or emotional harm to the minor as the result of disruption in
113	the family unit due to divorce, abandonment by a parent, or
114	disability or death of a parent, sibling, or other household
115	member, for which the minor has derived support and stability
116	from the relationship with the grandparent or great-grandparent,
117	and whether the continuation of that support and stability is
118	likely to prevent further harm.
119	(f) The existence or threat of mental injury to the minor
120	as defined in s. 39.01.
121	(g) When one parent is deceased, whether visitation with
122	the grandparent or great-grandparent will help maintain or
123	facilitate contact between the minor and the deceased parent's
124	extended family of origin such that demonstrable significant
125	mental or emotional harm to the minor from loss of additional
126	family relationships is mitigated.
127	(h) The present mental, physical, and emotional needs and
128	health of the minor.
129	(i) The present mental, physical, and emotional health of
130	the grandparent or great-grandparent.
131	(j) The recommendations of the minor's guardian ad litem.
132	(k) The results of the psychological evaluation of the
133	minor pursuant to Rule 12.363, Fla. Fam. L.R.P.
134	(l) The preference of the minor if the minor is determined
135	to be of sufficient maturity to express a preference.
136	(m) When a parent is deceased, any written testamentary
137	statement by the deceased parent requesting that visitation with
138	the grandparent or great-grandparent be granted or stating a
139	belief that such visitation would reduce or mitigate
140	demonstrable significant mental or emotional harm to the minor
141	as a result of the parent's death. The absence of such a
142	testamentary statement may not be construed as evidence that the
143	deceased parent would have objected to the requested visitation.
144	(n) Such other factors as the court considers necessary in
145	making this determination.
146	(7) In assessing whether granting a petition brought under
147	this chapter will cause material harm to the parent-child
148	relationship, the court shall consider the totality of the
149	circumstances affecting the parent-child relationship,
150	including:
151	(a) Whether there have been previous disputes between the
152	parents and the grandparent or great-grandparent over
153	childrearing or other matters related to the care and upbringing
154	of the minor;
155	(b) Whether visitation would materially interfere with or
156	compromise parental authority;
157	(c) Whether visitation can be arranged in such a manner as
158	not to materially detract from the parent-child relationship,
159	including the quantity of time available for enjoyment of the
160	parent-child relationship and any other consideration related to
161	disruption of the schedule and routines of the parents' and the
162	minor's home lives;
163	(d) Whether visitation is being sought for the primary
164	purpose of continuing or establishing a relationship with the
165	minor with the intent that the minor benefit from the
166	relationship;
167	(e) Whether the requested visitation would expose the
168	minor to conduct, moral standards, experiences, or other factors
169	that are inconsistent with influences provided by the parent;
170	(f) The nature of the relationship between the parents and
171	the grandparent or great-grandparent;
172	(g) The reasons for which a parent or parents have made a
173	decision to end contact or visitation between the minor and the
174	grandparent or great-grandparent which has been permitted
175	previously by that parent or parents;
176	(h) The psychological toll of visitation disputes on the
177	minor in the particular circumstances; and
178	(i) Such other factors as the court considers necessary in
179	making this determination.
180	(8) Part II of chapter 61, the Uniform Child Custody
181	Jurisdiction and Enforcement Act, apply to actions brought under
182	this chapter.
183	(9) If separate actions under this section and s. 61.13
184	are pending concurrently, courts are strongly encouraged to
185	consolidate the actions in order to minimize the burden of
186	litigation of visitation rights on the minor and the parties.
187	(10) An order of grandparent visitation or great-
188	grandparent visitation may be modified upon a showing of
189	substantial change in circumstances or a showing that visitation
190	is causing material harm to the parent-child relationship.
191	(11) An original action requesting visitation rights under
192	this chapter may be filed by any grandparent or great-
193	grandparent only once during any 2-year period, except on good
194	cause shown that the minor is suffering or threatened with
195	suffering demonstrable significant mental or emotional harm
196	caused by a parental decision to deny or limit contact or
197	visitation between a minor and grandparent or great-grandparent,
198	which was not known to the grandparent or great-grandparent at
199	the time of filing an earlier action.
200	(12) This section does not provide for visitation rights
201	for grandparents or great-grandparents of minors placed for
202	adoption under chapter 63 except as provided in s. 752.07 with
203	respect to adoption by a stepparent.
204	(13) Section 57.105 applies to actions brought under this
205	chapter.
206	Section 2. Section 752.01, Florida Statutes, is repealed.
207	Section 3. Section 752.015, Florida Statutes, is amended
208	to read:
209	752.015 Mediation of visitation disputes.--It shall be the
210	public policy of this state that families resolve differences
211	over grandparent visitation within the family. It shall be the
212	further public policy of this state that when families are
213	unable to resolve differences relating to grandparent visitation
214	that the family participate in any formal or informal mediation
215	services that may be available. When families are unable to
216	resolve differences relating to grandparent visitation and a
217	petition is filed pursuant to s. 752.011s. 752.01, the court
218	shall, if such services are available in the circuit, refer the
219	case to family mediation in accordance with rules promulgated by
220	the Supreme Court.
221	Section 4. Section 752.07, Florida Statutes, is amended to
222	read:
223	752.07 Effect of adoption of child by stepparent on right
224	of visitation; when right may be terminated.--When there is a
225	remarriage of one of the natural parents of a minor child for
226	whom visitation rights may be or may have been granted to a
227	grandparent pursuant to s. 752.011s. 752.01, any subsequent
228	adoption by the stepparent will not terminate any grandparental
229	rights. However, the court may determine that termination of
230	such visitation rights should be terminated based upon the
231	standards for granting such visitation which are set forth in s.
232	752.011is in the best interest of the childand rule
233	accordingly, after affording the grandparent an opportunity to
234	be heard.
235	Section 5. Subsections (46) and (50) of section 39.01,
236	Florida Statutes, are amended to read:
237	39.01 Definitions.--When used in this chapter, unless the
238	context otherwise requires:
239	(46) "Next of kin" means an adult relative of a child who
240	is the child's brother, sister, grandparent, great-grandparent,
241	aunt, uncle, or first cousin.
242	(50) "Participant," for purposes of a shelter proceeding,
243	dependency proceeding, or termination of parental rights
244	proceeding, means any person who is not a party but who should
245	receive notice of hearings involving the child, including foster
246	parents or the legal custodian of the child, identified
247	prospective parents, grandparents or great-grandparentsentitled
248	to priority for adoption consideration under s. 63.0425, actual
249	custodians of the child, and any other person whose
250	participation may be in the best interest of the child. A
251	community-based agency under contract with the department to
252	provide protective services may be designated as a participant
253	at the discretion of the court. Participants may be granted
254	leave by the court to be heard without the necessity of filing a
255	motion to intervene.
256	Section 6. Section 39.509, Florida Statutes, is amended to
257	read:
258	39.509 Grandparents' and great-grandparents'Grandparents
259	rights.--Notwithstanding any other provision of law, a maternal
260	or paternal grandparent or great-grandparentas well as a
261	stepgrandparent or step-great-grandparentis entitled to
262	reasonable visitation with his or her grandchild or great-
263	grandchildwho has been adjudicated a dependent child and taken
264	from the physical custody of the parent unless the court finds
265	that such visitation is not in the best interest of the child or
266	that such visitation would interfere with the goals of the case
267	plan. Reasonable visitation may be unsupervised and, where
268	appropriate and feasible, may be frequent and continuing.
269	(1) Grandparent or great-grandparentvisitation may take
270	place in the home of the grandparent or great-grandparentunless
271	there is a compelling reason for denying such a visitation. The
272	department's caseworker shall arrange the visitation to which a
273	grandparent or great-grandparentis entitled pursuant to this
274	section. The state shall not charge a fee for any costs
275	associated with arranging the visitation. However, the
276	grandparent or great-grandparentshall pay for the child's cost
277	of transportation when the visitation is to take place in the
278	grandparent's or great-grandparent'shome. The caseworker shall
279	document the reasons for any decision to restrict a
280	grandparent's or great-grandparent'svisitation.
281	(2) A grandparent or great-grandparententitled to
282	visitation pursuant to this section shall not be restricted from
283	appropriate displays of affection to the child, such as
284	appropriately hugging or kissing his or her grandchild or great-
285	grandchild. Gifts, cards, and letters from the grandparent or
286	great-grandparentand other family members shall not be denied
287	to a child who has been adjudicated a dependent child.
288	(3) Any attempt by a grandparent or great-grandparentto
289	facilitate a meeting between the child who has been adjudicated
290	a dependent child and the child's parent or legal custodian, or
291	any other person in violation of a court order shall
292	automatically terminate future visitation rights of the
293	grandparent or great-grandparent.
294	(4) When the child has been returned to the physical
295	custody of his or her parent, the visitation rights granted
296	pursuant to this section shall terminate.
297	(5) The termination of parental rights does not affect the
298	rights of grandparents or great-grandparentsunless the court
299	finds that such visitation is not in the best interest of the
300	child or that such visitation would interfere with the goals of
301	permanency planning for the child.
302	(6) In determining whether grandparental or great-
303	grandparentalvisitation is not in the child's best interest,
304	consideration may be given to the finding of guilt, regardless
305	of adjudication, or entry or plea of guilty or nolo contendere
306	to charges under the following statutes, or similar statutes of
307	other jurisdictions: s. 787.04, relating to removing minors
308	from the state or concealing minors contrary to court order; s.
309	794.011, relating to sexual battery; s. 798.02, relating to lewd
310	and lascivious behavior; chapter 800, relating to lewdness and
311	indecent exposure; or chapter 827, relating to the abuse of
312	children. Consideration may also be given to a report of abuse,
313	abandonment, or neglect under ss. 415.101-415.113 or this
314	chapter and the outcome of the investigation concerning such
315	report.
316	Section 7. Paragraph (a) of subsection (3) of section
317	39.801, Florida Statutes, is amended to read:
318	39.801 Procedures and jurisdiction; notice; service of
319	process.--
320	(3) Before the court may terminate parental rights, in
321	addition to the other requirements set forth in this part, the
322	following requirements must be met:
323	(a) Notice of the date, time, and place of the advisory
324	hearing for the petition to terminate parental rights and a copy
325	of the petition must be personally served upon the following
326	persons, specifically notifying them that a petition has been
327	filed:
328	1. The parents of the child.
329	2. The legal custodians of the child.
330	3. If the parents who would be entitled to notice are dead
331	or unknown, a living relative of the child, unless upon diligent
332	search and inquiry no such relative can be found.
333	4. Any person who has physical custody of the child.
334	5. Any grandparent or great-grandparententitled to
335	priority for adoption under s. 63.0425.
336	6. Any prospective parent who has been identified under s.
337	39.503 or s. 39.803.
338	7. The guardian ad litem for the child or the
339	representative of the guardian ad litem program, if the program
340	has been appointed.
341
342	The document containing the notice to respond or appear must
343	contain, in type at least as large as the type in the balance of
344	the document, the following or substantially similar language:
345	"FAILURE TO PERSONALLY APPEAR AT THIS ADVISORY HEARING
346	CONSTITUTES CONSENT TO THE TERMINATION OF PARENTAL RIGHTS OF
347	THIS CHILD (OR CHILDREN). IF YOU FAIL TO APPEAR ON THE DATE AND
348	TIME SPECIFIED, YOU MAY LOSE ALL LEGAL RIGHTS AS A PARENT TO THE
349	CHILD OR CHILDREN NAMED IN THE PETITION ATTACHED TO THIS
350	NOTICE."
351	Section 8. Paragraph (b) of subsection (2), paragraphs (c)
352	and (d) of subsection (4), and subsections (6) and (7) of
353	section 61.13, Florida Statutes, are amended to read:
354	61.13 Custody and support of children; visitation rights;
355	power of court in making orders.--
356	(2)
357	(b)1. The court shall determine all matters relating to
358	custody of each minor child of the parties in accordance with
359	the best interests of the child and in accordance with the
360	Uniform Child Custody Jurisdiction and Enforcement Act. It is
361	the public policy of this state to assure that each minor child
362	has frequent and continuing contact with both parents after the
363	parents separate or the marriage of the parties is dissolved and
364	to encourage parents to share the rights and responsibilities,
365	and joys, of childrearing. After considering all relevant facts,
366	the father of the child shall be given the same consideration as
367	the mother in determining the primary residence of a child
368	irrespective of the age or sex of the child.
369	2. The court shall order that the parental responsibility
370	for a minor child be shared by both parents unless the court
371	finds that shared parental responsibility would be detrimental
372	to the child. Evidence that a parent has been convicted of a
373	felony of the third degree or higher involving domestic
374	violence, as defined in s. 741.28 and chapter 775, or meets the
375	criteria of s. 39.806(1)(d), creates a rebuttable presumption of
376	detriment to the child. If the presumption is not rebutted,
377	shared parental responsibility, including visitation, residence
378	of the child, and decisions made regarding the child, may not be
379	granted to the convicted parent. However, the convicted parent
380	is not relieved of any obligation to provide financial support.
381	If the court determines that shared parental responsibility
382	would be detrimental to the child, it may order sole parental
383	responsibility and make such arrangements for visitation as will
384	best protect the child or abused spouse from further harm.
385	Whether or not there is a conviction of any offense of domestic
386	violence or child abuse or the existence of an injunction for
387	protection against domestic violence, the court shall consider
388	evidence of domestic violence or child abuse as evidence of
389	detriment to the child.
390	a. In ordering shared parental responsibility, the court
391	may consider the expressed desires of the parents and may grant
392	to one party the ultimate responsibility over specific aspects
393	of the child's welfare or may divide those responsibilities
394	between the parties based on the best interests of the child.
395	Areas of responsibility may include primary residence,
396	education, medical and dental care, and any other
397	responsibilities that the court finds unique to a particular
398	family.
399	b. The court shall order "sole parental responsibility,
400	with or without visitation rights, to the other parent when it
401	is in the best interests of" the minor child.
402	c. The court may award the grandparents or great-
403	grandparents visitation rights with a minor child pursuant to
404	the criteria set forth in s. 752.011if it is in the child's
405	best interest. Grandparents or great-grandparentshave legal
406	standing to seek judicial enforcement of such an award. This
407	section does not require that grandparents or great-grandparents
408	be made parties toor given notice of dissolution pleadings or
409	proceedings, nor do grandparents or great-grandparentshave
410	legal standing as "contestants" as defined in s. 61.1306.
411	However, if separate actions under this section and s. 752.011
412	are pending concurrently, courts are strongly encouraged to
413	consolidate the actions in order to minimize the burden of
414	litigation of visitation rights on the child.A court may not
415	order that a child be kept within the state or jurisdiction of
416	the court solely for the purpose of permitting visitation by the
417	grandparents or great-grandparents.
418	3. Access to records and information pertaining to a minor
419	child, including, but not limited to, medical, dental, and
420	school records, may not be denied to a parent because the parent
421	is not the child's primary residential parent. Full rights under
422	this subparagraph apply to either parent unless a court order
423	specifically revokes these rights, including any restrictions on
424	these rights as provided in a domestic violence injunction. A
425	parent having rights under this subparagraph has the same rights
426	upon request as to form, substance, and manner of access as are
427	available to the other parent of a child, including, without
428	limitation, the right to in-person communication with medical,
429	dental, and education providers.
430	(4)
431	(c) When a custodial parent refuses to honor a
432	noncustodial parent's,or grandparent's, or great-grandparent's
433	visitation rights without proper cause, the court shall, after
434	calculating the amount of visitation improperly denied, award
435	the noncustodial parent,or grandparent, or great-grandparenta
436	sufficient amount of extra visitation to compensate the
437	noncustodial parent,or grandparent, or great-grandparent, which
438	visitation shall be ordered as expeditiously as possible in a
439	manner consistent with the best interests of the child and
440	scheduled in a manner that is convenient for the person deprived
441	of visitation. In ordering any makeup visitation, the court
442	shall schedule such visitation in a manner that is consistent
443	with the best interests of the child or children and that is
444	convenient for the noncustodial parent,or grandparent, or
445	great-grandparent. In addition, the court:
446	1. May order the custodial parent to pay reasonable court
447	costs and attorney's fees incurred by the noncustodial parent,
448	or grandparent, or great-grandparentto enforce their visitation
449	rights or make up improperly denied visitation;
450	2. May order the custodial parent to attend the parenting
451	course approved by the judicial circuit;
452	3. May order the custodial parent to do community service
453	if the order will not interfere with the welfare of the child;
454	4. May order the custodial parent to have the financial
455	burden of promoting frequent and continuing contact when the
456	custodial parent and child reside further than 60 miles from the
457	noncustodial parent;
458	5. May award custody, rotating custody, or primary
459	residence to the noncustodial parent, upon the request of the
460	noncustodial parent, if the award is in the best interests of
461	the child; or
462	6. May impose any other reasonable sanction as a result of
463	noncompliance.
464	(d) A person who violates this subsection may be punished
465	by contempt of court or other remedies as the court deems
466	appropriate.
467	(6) In any proceeding under this section, the court may
468	not deny shared parental responsibility, custody, or visitation
469	rights to a parent,or grandparent, or great-grandparentsolely
470	because that parent,or grandparent, or great-grandparentis or
471	is believed to be infected with human immunodeficiency virus;
472	but the court may condition such rights upon the parent's,or
473	grandparent's, or great-grandparent'sagreement to observe
474	measures approved by the Centers for Disease Control and
475	Prevention of the United States Public Health Service or by the
476	Department of Health for preventing the spread of human
477	immunodeficiency virus to the child.
478	(7) In any case where the child is actually residing with
479	a grandparent or great-grandparentin a stable relationship,
480	whether or not the court has awarded custody to the grandparent
481	or great-grandparentor not, the court may recognize the
482	grandparent or great-grandparentgrandparentsas having the same
483	standing as parents for evaluating what custody arrangements are
484	in the best interest of the child.
485	Section 9. Subsection (1) of section 63.0425, Florida
486	Statutes, is amended to read:
487	63.0425 Grandparent's or great-grandparent'sright to
488	adopt.--
489	(1) When a child who has lived with a grandparent or
490	great-grandparentfor at least 6 months is placed for adoption,
491	the adoption entity handling the adoption shall notify that
492	grandparent or great-grandparentof the impending adoption
493	before the petition for adoption is filed. If the grandparent or
494	great-grandparentpetitions the court to adopt the child, the
495	court shall give first priority for adoption to that grandparent
496	or great-grandparent.
497	(2) This section doesshallnot apply if the placement for
498	adoption is a result of the death of the child's parent and a
499	different preference is stated in the parent's will.
500	(3) This section doesshallnot apply in stepparent
501	adoptions.
502	(4) Nothing in This section does notshall contravene the
503	provisions ofs. 63.142(4).
504	Section 10. Subsection (2) of section 63.172, Florida
505	Statutes, is amended to read:
506	63.172 Effect of judgment of adoption.--
507	(2) If one or both parents of a child die without the
508	relationship of parent and child having been previously
509	terminated and a spouse of the living parent or a close relative
510	of the child thereafter adopts the child, the child's right of
511	inheritance from or through the deceased parent is unaffected by
512	the adoption and, unless the court orders otherwise, the
513	adoption will not terminate any grandparental or great-
514	grandparentalrights delineated under chapter 752. For purposes
515	of this subsection, a close relative of a child is the child's
516	brother, sister, grandparent, great-grandparent,aunt, or uncle.
517	Section 11. This act shall take effect July 1, 2003.