Senate Bill sb0128c1

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    Florida Senate - 2003                            CS for SB 128

    By the Committee on Judiciary; and Senators Campbell and Cowin





    308-2467-03

  1                      A bill to be entitled

  2         An act relating to children and families;

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

  4         court-ordered visitation for grandparents and

  5         great-grandparents under certain circumstances;

  6         providing for appointment of a guardian ad

  7         litem and family mediation if the court makes a

  8         preliminary finding that the minor is

  9         threatened with demonstrable significant mental

10         or emotional harm without such visitation;

11         requiring court-ordered evaluation of the child

12         if mediation fails; providing for a hearing to

13         determine whether the minor is threatened with

14         harm; providing for attorney's fees and costs;

15         applying the Uniform Child Custody Jurisdiction

16         and Enforcement Act; repealing s. 752.01, F.S.,

17         relating to grandparental visitation;

18         encouraging consolidation of actions under ss.

19         61.13, 752.011, F.S.; amending ss. 752.015,

20         752.07, F.S., to conform cross-references;

21         amending s. 39.01, F.S.; including references

22         to great-grandparents in definitions relating

23         dependent children; amending s. 39.509, F.S.;

24         providing for great-grandparents' visitation

25         rights; amending ss. 39.801, 63.0425, F.S.;

26         providing for a great-grandparent's right to

27         notice; amending s. 61.13, F.S.; providing for

28         great-grandparents' visitation rights;

29         conforming this section to provisions of this

30         act; amending s. 63.172, F.S.; conforming

31         references relating to great-grandparental

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    Florida Senate - 2003                            CS for SB 128
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 1         visitation rights under ch. 752, F.S.;

 2         providing an effective date.

 3  

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

 5  

 6         Section 1.  Section 752.011, Florida Statutes, is

 7  created to read:

 8         752.011  Action by grandparent or great-grandparent for

 9  right of visitation; when petition shall be granted.--

10         (1)  A grandparent or great-grandparent of a minor may

11  petition for visitation with that minor if:

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

13  deceased;

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

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

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

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

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

19  742.091; or

20         (e)  A deceased parent of the minor has made a written

21  testamentary statement requesting that there be visitation

22  between his or her surviving minor child and the grandparent

23  or great-grandparent.

24         (2)  Upon the filing of a petition by a grandparent or

25  great-grandparent for visitation rights, the court shall hold

26  a preliminary hearing to find whether there is evidence that

27  the minor is suffering or is threatened with suffering

28  demonstrable significant mental or emotional harm or harm as

29  defined in s. 39.01(30) as a result of a parental decision not

30  to permit visitation or contact with the grandparent or

31  great-grandparent. Absent such a finding, the court shall

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 1  dismiss the petition and shall award reasonable attorney's

 2  fees and costs to be paid by the petitioner to the respondent.

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

 4  minor is suffering or is threatened with suffering

 5  demonstrable significant mental or emotional harm or harm as

 6  defined in s. 39.01(30) as a result of a parental decision not

 7  to permit visitation or contact with the grandparent or

 8  great-grandparent, the court may appoint a guardian ad litem

 9  and shall order the matter to family mediation as provided in

10  chapter 44 and Rules 12.740 and 12.741 of the Florida Family

11  Law Rules of Procedure.

12         (4)  When mediation fails to yield a resolution, the

13  court shall order a psychological evaluation of the minor,

14  pursuant to Rule 12.363, Fla. Fam. L.R.P., if comparable

15  evidence of the findings expected from such evaluation is

16  unavailable.

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

18  reasonable rights of visitation to the grandparent or

19  great-grandparent with respect to the minor if the court finds

20  that:

21         (a)  There is clear and convincing evidence that the

22  minor is suffering or is threatened with suffering

23  demonstrable significant mental or emotional harm or harm as

24  defined in s. 39.01(30) as a result of a parental decision not

25  to permit visitation or contact with the grandparent or

26  great-grandparent and that visitation with the grandparent or

27  great-grandparent will alleviate or mitigate the harm; and

28         (b)  That the visitation will not materially harm the

29  parent-child relationship.

30  

31  

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 1         (6)  Part II of chapter 61, the Uniform Child Custody

 2  Jurisdiction and Enforcement Act, applies to actions brought

 3  under this chapter.

 4         (7)  If separate actions under this section and s.

 5  61.13 are pending concurrently, courts are strongly encouraged

 6  to consolidate the actions to minimize the burden of

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

 8         (8)  An order of grandparent or great-grandparent

 9  visitation may be modified upon a showing of substantial

10  change in circumstances or a showing that visitation is

11  causing material harm to the parent-child relationship.

12         (9)  An original action requesting visitation rights

13  under this chapter may be filed by any grandparent or

14  great-grandparent only once during any 2-year period, except

15  on good cause shown that the minor is suffering or threatened

16  with suffering demonstrable significant mental or emotional

17  harm caused by a parental decision to deny or limit contact or

18  visitation between a minor and grandparent or

19  great-grandparent, which was not known to the grandparent or

20  great-grandparent at the time of filing an earlier action.

21         (10)  This section does not provide for visitation

22  rights for grandparents or great-grandparents of minors placed

23  for adoption under chapter 63 except as provided in s. 752.07

24  with respect to adoption by a stepparent.

25         (11)  Section 57.105 applies to actions brought under

26  this chapter.

27         (12)  Venue shall be in the county where the grandchild

28  primarily resides, unless venue is otherwise governed by

29  chapter 39, chapter 61, or chapter 63.

30         Section 2.  Section 752.01, Florida Statutes, is

31  repealed.

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 1         Section 3.  Section 752.015, Florida Statutes, is

 2  amended to read:

 3         752.015  Mediation of visitation disputes.--It shall be

 4  the public policy of this state that families resolve

 5  differences over grandparent visitation within the family. It

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

 7  families are unable to resolve differences relating to

 8  grandparent visitation that the family participate in any

 9  formal or informal mediation services that may be available.

10  When families are unable to resolve differences relating to

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

12  752.011 s. 752.01, the court shall, if such services are

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

14  in accordance with rules promulgated by the Supreme Court.

15         Section 4.  Section 752.07, Florida Statutes, is

16  amended to read:

17         752.07  Effect of adoption of child by stepparent on

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

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

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

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

22  adoption by the stepparent will not terminate any

23  grandparental rights. However, the court may determine that

24  termination of such visitation rights should be terminated,

25  based upon the standards in s. 752.011 is in the best interest

26  of the child and rule accordingly, after affording the

27  grandparent an opportunity to be heard.

28         Section 5.  Subsections (46) and (50) of section 39.01,

29  Florida Statutes, are amended to read:

30         39.01  Definitions.--When used in this chapter, unless

31  the context otherwise requires:

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 1         (46)  "Next of kin" means an adult relative of a child

 2  who is the child's brother, sister, grandparent,

 3  great-grandparent, aunt, uncle, or first cousin.

 4         (50)  "Participant," for purposes of a shelter

 5  proceeding, dependency proceeding, or termination of parental

 6  rights proceeding, means any person who is not a party but who

 7  should receive notice of hearings involving the child,

 8  including foster parents or the legal custodian of the child,

 9  identified prospective parents, grandparents or

10  great-grandparents entitled to priority for adoption

11  consideration under s. 63.0425, actual custodians of the

12  child, and any other person whose participation may be in the

13  best interest of the child. A community-based agency under

14  contract with the department to provide protective services

15  may be designated as a participant at the discretion of the

16  court. Participants may be granted leave by the court to be

17  heard without the necessity of filing a motion to intervene.

18         Section 6.  Section 39.509, Florida Statutes, is

19  amended to read:

20         39.509  Grandparents and great-grandparents

21  rights.--Notwithstanding any other provision of law, a

22  maternal or paternal grandparent or great-grandparent as well

23  as a stepgrandparent or step great-grandparent is entitled to

24  reasonable visitation with his or her grandchild or

25  great-grandchild who has been adjudicated a dependent child

26  and taken from the physical custody of the parent unless the

27  court finds that such visitation is not in the best interest

28  of the child or that such visitation would interfere with the

29  goals of the case plan. Reasonable visitation may be

30  unsupervised and, where appropriate and feasible, may be

31  frequent and continuing.

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    Florida Senate - 2003                            CS for SB 128
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 1         (1)  Grandparent or great-grandparent visitation may

 2  take place in the home of the grandparent or great-grandparent

 3  unless there is a compelling reason for denying such a

 4  visitation. The department's caseworker shall arrange the

 5  visitation to which a grandparent or great-grandparent is

 6  entitled pursuant to this section.  The state shall not charge

 7  a fee for any costs associated with arranging the visitation.

 8  However, the grandparent or great-grandparent shall pay for

 9  the child's cost of transportation when the visitation is to

10  take place in the grandparent's or great-grandparent's home.

11  The caseworker shall document the reasons for any decision to

12  restrict a grandparent's or great-grandparent's visitation.

13         (2)  A grandparent or great-grandparent entitled to

14  visitation pursuant to this section shall not be restricted

15  from appropriate displays of affection to the child, such as

16  appropriately hugging or kissing his or her grandchild or

17  great-grandchild.  Gifts, cards, and letters from the

18  grandparent or great-grandparent and other family members

19  shall not be denied to a child who has been adjudicated a

20  dependent child.

21         (3)  Any attempt by a grandparent or great-grandparent

22  to facilitate a meeting between the child who has been

23  adjudicated a dependent child and the child's parent or legal

24  custodian, or any other person in violation of a court order

25  shall automatically terminate future visitation rights of the

26  grandparent or great-grandparent.

27         (4)  When the child has been returned to the physical

28  custody of his or her parent, the visitation rights granted

29  pursuant to this section shall terminate.

30         (5)  The termination of parental rights does not affect

31  the rights of grandparents or great-grandparents unless the

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    Florida Senate - 2003                            CS for SB 128
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 1  court finds that such visitation is not in the best interest

 2  of the child or that such visitation would interfere with the

 3  goals of permanency planning for the child.

 4         (6)  In determining whether grandparental or

 5  great-grandparental visitation is not in the child's best

 6  interest, consideration may be given to the finding of guilt,

 7  regardless of adjudication, or entry or plea of guilty or nolo

 8  contendere to charges under the following statutes, or similar

 9  statutes of other jurisdictions:  s. 787.04, relating to

10  removing minors from the state or concealing minors contrary

11  to court order; s. 794.011, relating to sexual battery; s.

12  798.02, relating to lewd and lascivious behavior; chapter 800,

13  relating to lewdness and indecent exposure; or chapter 827,

14  relating to the abuse of children.  Consideration may also be

15  given to a report of abuse, abandonment, or neglect under ss.

16  415.101-415.113 or this chapter and the outcome of the

17  investigation concerning such report.

18         Section 7.  Paragraph (a) of subsection (3) of section

19  39.801, Florida Statutes, is amended to read:

20         39.801  Procedures and jurisdiction; notice; service of

21  process.--

22         (3)  Before the court may terminate parental rights, in

23  addition to the other requirements set forth in this part, the

24  following requirements must be met:

25         (a)  Notice of the date, time, and place of the

26  advisory hearing for the petition to terminate parental rights

27  and a copy of the petition must be personally served upon the

28  following persons, specifically notifying them that a petition

29  has been filed:

30         1.  The parents of the child.

31         2.  The legal custodians of the child.

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 1         3.  If the parents who would be entitled to notice are

 2  dead or unknown, a living relative of the child, unless upon

 3  diligent search and inquiry no such relative can be found.

 4         4.  Any person who has physical custody of the child.

 5         5.  Any grandparent or great-grandparent entitled to

 6  notice of priority for adoption under s. 63.0425.

 7         6.  Any prospective parent who has been identified

 8  under s. 39.503 or s. 39.803.

 9         7.  The guardian ad litem for the child or the

10  representative of the guardian ad litem program, if the

11  program has been appointed.

12  

13  The document containing the notice to respond or appear must

14  contain, in type at least as large as the type in the balance

15  of the document, the following or substantially similar

16  language:  "FAILURE TO PERSONALLY APPEAR AT THIS ADVISORY

17  HEARING CONSTITUTES CONSENT TO THE TERMINATION OF PARENTAL

18  RIGHTS OF THIS CHILD (OR CHILDREN). IF YOU FAIL TO APPEAR ON

19  THE DATE AND TIME SPECIFIED, YOU MAY LOSE ALL LEGAL RIGHTS AS

20  A PARENT TO THE CHILD OR CHILDREN NAMED IN THE PETITION

21  ATTACHED TO THIS NOTICE."

22         Section 8.  Paragraph (b) of subsection (2), paragraphs

23  (c) and (d) of subsection (4) and subsections (6) and (7) of

24  section 61.13, Florida Statutes, are amended to read:

25         61.13  Custody and support of children; visitation

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

27         (2)

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

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

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

31  the Uniform Child Custody Jurisdiction and Enforcement Act. It

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 1  is the public policy of this state to assure that each minor

 2  child has frequent and continuing contact with both parents

 3  after the parents separate or the marriage of the parties is

 4  dissolved and to encourage parents to share the rights and

 5  responsibilities, and joys, of childrearing. After considering

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

 7  same consideration as the mother in determining the primary

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

 9  child.

10         2.  The court shall order that the parental

11  responsibility for a minor child be shared by both parents

12  unless the court finds that shared parental responsibility

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

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

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

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

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

18  presumption is not rebutted, shared parental responsibility,

19  including visitation, residence of the child, and decisions

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

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

22  obligation to provide financial support. If the court

23  determines that shared parental responsibility would be

24  detrimental to the child, it may order sole parental

25  responsibility and make such arrangements for visitation as

26  will best protect the child or abused spouse from further

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

28  domestic violence or child abuse or the existence of an

29  injunction for protection against domestic violence, the court

30  shall consider evidence of domestic violence or child abuse as

31  evidence of detriment to the child.

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 1         a.  In ordering shared parental responsibility, the

 2  court may consider the expressed desires of the parents and

 3  may grant to one party the ultimate responsibility over

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

 5  responsibilities between the parties based on the best

 6  interests of the child. Areas of responsibility may include

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

 8  other responsibilities that the court finds unique to a

 9  particular family.

10         b.  The court shall order "sole parental

11  responsibility, with or without visitation rights, to the

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

13  child.

14         c.  The court may award the grandparents or

15  great-grandparents visitation rights with a minor child,

16  pursuant to s. 752.011 if it is in the child's best interest.

17  Grandparents or great-grandparents have legal standing to seek

18  judicial enforcement of such an award. This section does not

19  require that grandparents or great-grandparents be made

20  parties to or given notice of dissolution pleadings or

21  proceedings, nor do grandparents have legal standing as

22  "contestants" as defined in s. 61.1306. However, if separate

23  actions under this section and s. 752.011 are pending

24  concurrently, courts are strongly encouraged to consolidate

25  the actions in order to minimize the burden of litigation of

26  visitation rights on the child.  A court may not order that a

27  child be kept within the state or jurisdiction of the court

28  solely for the purpose of permitting visitation by the

29  grandparents or great-grandparents.

30         3.  Access to records and information pertaining to a

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

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

 2  parent is not the child's primary residential parent. Full

 3  rights under this subparagraph apply to either parent unless a

 4  court order specifically revokes these rights, including any

 5  restrictions on these rights as provided in a domestic

 6  violence injunction. A parent having rights under this

 7  subparagraph has the same rights upon request as to form,

 8  substance, and manner of access as are available to the other

 9  parent of a child, including, without limitation, the right to

10  in-person communication with medical, dental, and education

11  providers.

12         (4)

13         (c)  When a custodial parent refuses to honor a

14  noncustodial parent's, or grandparent's or great-grandparent's

15  visitation rights without proper cause, the court shall, after

16  calculating the amount of visitation improperly denied, award

17  the noncustodial parent, or grandparent, or great-grandparent

18  a sufficient amount of extra visitation to compensate the

19  noncustodial parent, or grandparent, or great-grandparent,

20  which visitation shall be ordered as expeditiously as possible

21  in a manner consistent with the best interests of the child

22  and scheduled in a manner that is convenient for the person

23  deprived of visitation. In ordering any makeup visitation, the

24  court shall schedule such visitation in a manner that is

25  consistent with the best interests of the child or children

26  and that is convenient for the noncustodial parent, or

27  grandparent, or great-grandparent. In addition, the court:

28         1.  May order the custodial parent to pay reasonable

29  court costs and attorney's fees incurred by the noncustodial

30  parent, or grandparent, or great-grandparent to enforce their

31  visitation rights or make up improperly denied visitation;

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 1         2.  May order the custodial parent to attend the

 2  parenting course approved by the judicial circuit;

 3         3.  May order the custodial parent to do community

 4  service if the order will not interfere with the welfare of

 5  the child;

 6         4.  May order the custodial parent to have the

 7  financial burden of promoting frequent and continuing contact

 8  when the custodial parent and child reside further than 60

 9  miles from the noncustodial parent;

10         5.  May award custody, rotating custody, or primary

11  residence to the noncustodial parent, upon the request of the

12  noncustodial parent, if the award is in the best interests of

13  the child; or

14         6.  May impose any other reasonable sanction as a

15  result of noncompliance.

16         (d)  A person who violates this subsection may be

17  punished by contempt of court or other remedies as the court

18  deems appropriate.

19         (6)  In any proceeding under this section, the court

20  may not deny shared parental responsibility, custody, or

21  visitation rights to a parent, or grandparent, or

22  great-grandparent solely because that person parent or

23  grandparent is or is believed to be infected with human

24  immunodeficiency virus; but the court may condition such

25  rights upon the parent's, or grandparent's, or

26  great-grandparent's agreement to observe measures approved by

27  the Centers for Disease Control and Prevention of the United

28  States Public Health Service or by the Department of Health

29  for preventing the spread of human immunodeficiency virus to

30  the child.

31  

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 1         (7)  In any case where the child is actually residing

 2  with a grandparent in a stable relationship, whether the court

 3  has awarded custody to the grandparent or not, the court may

 4  recognize the grandparents as having the same standing as

 5  parents for evaluating what custody arrangements are in the

 6  best interest of the child.

 7         Section 9.  Subsection (1) of section 63.0425, Florida

 8  Statutes, is amended to read:

 9         63.0425  Grandparent's right to adopt.--

10         (1)  When a child who has lived with a grandparent or

11  great-grandparent for at least 6 months during the 24-month

12  period immediately preceding the filing of a petition for

13  termination of parental rights pending is placed for adoption,

14  the adoption entity handling the adoption shall notify that

15  grandparent or great-grandparent of the hearing on the

16  petition for termination of parental rights pending adoption

17  impending adoption before the petition for adoption is filed.

18  If the grandparent petitions the court to adopt the child, the

19  court shall give first priority for adoption to that

20  grandparent.

21         Section 10.  Subsection (2) of section 63.172, Florida

22  Statutes, is amended to read:

23         63.172  Effect of judgment of adoption.--

24         (2)  If one or both parents of a child die without the

25  relationship of parent and child having been previously

26  terminated and a spouse of the living parent or a close

27  relative of the child thereafter adopts the child, the child's

28  right of inheritance from or through the deceased parent is

29  unaffected by the adoption and, unless the court orders

30  otherwise, the adoption will not terminate any grandparental

31  or great-grandparental rights delineated under chapter 752.

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 1  For purposes of this subsection, a close relative of a child

 2  is the child's brother, sister, grandparent,

 3  great-grandparent, aunt, or uncle.

 4         Section 11.  This act shall take effect July 1, 2003.

 5  

 6          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 7                         Senate Bill 128

 8                                 

 9  Does not allow an independent statutory right of action for
    grandparent or great-grandparent visitation in those cases
10  involving a decision to prohibit or limit visitation by one or
    both parents who are in married relationships.
11  
    Eliminates the criteria to be considered by the courts in
12  making their preliminary threshold finding and final finding
    of specified harm for purposes of granting grandparent and
13  great-grandparent visitation rights.

14  Repeals subsection (7) of s. 61.13, F.S., which was declared
    unconstitutional as it gave grandparents equal standing to
15  those of parents in child custody disputes.

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