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