Senate Bill sb2992

CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 2004                                  SB 2992

    By Senator Campbell





    32-1819A-04

  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         demonstrable significant mental or emotional

15         harm; providing criteria for such a

16         determination; providing for attorney's fees

17         and costs; applying the Uniform Child Custody

18         Jurisdiction and Enforcement Act; repealing s.

19         752.01, F.S., relating to grandparental

20         visitation; encouraging consolidation of

21         actions under ss. 61.13 and 752.011, F.S.;

22         providing for venue; amending ss. 752.015 and

23         752.07, F.S.; conforming cross-references;

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

25         to great-grandparents in definitions relating

26         to dependent children; amending s. 39.509,

27         F.S.; providing for great-grandparents'

28         visitation rights; amending ss. 39.801 and

29         63.0425, F.S.; providing for a

30         great-grandparent's right to notice of a

31         hearing on termination of parental rights

                                  1

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2004                                  SB 2992
    32-1819A-04




 1         pending adoption; amending s. 61.13, F.S.;

 2         providing for great-grandparents' visitation

 3         rights and standing with regard to evaluating

 4         custody arrangements; conforming this section

 5         to provisions of this act; amending s. 63.172,

 6         F.S.; conforming references relating to

 7         great-grandparental visitation rights under ch.

 8         752, F.S.; providing an effective date.

 9  

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

11  

12         Section 1.  Section 752.011, Florida Statutes, is

13  created to read:

14         752.011  Action by grandparent or great-grandparent for

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

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

17  petition for visitation with that minor if:

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

19  deceased;

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

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

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

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

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

25  742.091; or

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

27  testamentary statement requesting that there be visitation

28  between his or her surviving minor child and the grandparent

29  or great-grandparent.

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

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

                                  2

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2004                                  SB 2992
    32-1819A-04




 1  a preliminary hearing to find whether there is evidence that

 2  the minor is suffering or is threatened with suffering

 3  demonstrable significant mental or emotional harm as a result

 4  of a parental decision not to permit visitation or contact

 5  with the grandparent or great-grandparent. Absent such a

 6  finding, the court shall dismiss the petition and shall award

 7  reasonable attorney's fees and costs to be paid by the

 8  petitioner to the respondent.

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

10  minor is suffering or is threatened with suffering

11  demonstrable significant mental or emotional harm as a result

12  of a parental decision not to permit visitation or contact

13  with the grandparent or great-grandparent, the court may

14  appoint a guardian ad litem and shall order the matter to

15  family mediation as provided in chapter 44 and Rules 12.740

16  and 12.741 of the Florida Family Law Rules of Procedure.

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

18  court shall order a psychological evaluation of the minor

19  pursuant to Rule 12.363, Florida Family Law Rules of

20  Procedure, if comparable evidence of the findings expected

21  from such an evaluation is unavailable.

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

23  reasonable rights of visitation to the grandparent or

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

25  that:

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

27  minor is suffering or is threatened with suffering

28  demonstrable significant mental or emotional harm as a result

29  of a parental decision not to permit visitation or contact

30  with the grandparent or great-grandparent and that visitation

31  

                                  3

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2004                                  SB 2992
    32-1819A-04




 1  with the grandparent or great-grandparent will alleviate or

 2  mitigate the harm; and 

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

 4  parent-child relationship.

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

 6  Jurisdiction and Enforcement Act, apply to actions brought

 7  under this chapter.

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

 9  61.13 are pending concurrently, courts are strongly encouraged

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

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

12         (8)  An order of grandparent visitation or

13  great-grandparent visitation may be modified upon a showing of

14  substantial change in circumstances or a showing that

15  visitation is causing material harm to the parent-child

16  relationship.

17         (9)  An original action requesting visitation rights

18  under this chapter may be filed by any grandparent or

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

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

21  with suffering demonstrable significant mental or emotional

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

23  visitation between a minor and grandparent or

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

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

26         (10)  This section does not provide for visitation

27  rights for grandparents or great-grandparents of minors placed

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

29  with respect to adoption by a stepparent.

30         (11)  Section 57.105 applies to actions brought under

31  this chapter.

                                  4

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2004                                  SB 2992
    32-1819A-04




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

 2  primarily resides, unless venue is otherwise governed by

 3  chapter 39, chapter 61, or chapter 63.

 4         Section 2.  Section 752.01, Florida Statutes, is

 5  repealed.

 6         Section 3.  Section 752.015, Florida Statutes, is

 7  amended to read:

 8         752.015  Mediation of visitation disputes.--It shall be

 9  the public policy of this state that families resolve

10  differences over grandparent visitation within the family. It

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

12  families are unable to resolve differences relating to

13  grandparent visitation that the family participate in any

14  formal or informal mediation services that may be available.

15  When families are unable to resolve differences relating to

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

17  752.011 s. 752.01, the court shall, if such services are

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

19  in accordance with rules promulgated by the Supreme Court.

20         Section 4.  Section 752.07, Florida Statutes, is

21  amended to read:

22         752.07  Effect of adoption of child by stepparent on

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

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

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

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

27  adoption by the stepparent will not terminate any

28  grandparental rights. However, the court may determine that

29  termination of such visitation rights should be terminated

30  based upon the standards for granting such visitation which

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

                                  5

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2004                                  SB 2992
    32-1819A-04




 1  child and rule accordingly, after affording the grandparent an

 2  opportunity to be heard.

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

 4  Florida Statutes, are amended to read:

 5         39.01  Definitions.--When used in this chapter, unless

 6  the context otherwise requires:

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

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

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

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

11  proceeding, dependency proceeding, or termination of parental

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

13  should receive notice of hearings involving the child,

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

15  identified prospective parents, grandparents or

16  great-grandparents entitled to priority for adoption

17  consideration under s. 63.0425, actual custodians of the

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

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

20  contract with the department to provide protective services

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

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

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

24         Section 6.  Section 39.509, Florida Statutes, is

25  amended to read:

26         39.509  Grandparents' and great-grandparents'

27  Grandparents rights.--Notwithstanding any other provision of

28  law, a maternal or paternal grandparent or great-grandparent

29  as well as a stepgrandparent or step-great-grandparent is

30  entitled to reasonable visitation with his or her grandchild

31  or great-grandchild who has been adjudicated a dependent child

                                  6

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2004                                  SB 2992
    32-1819A-04




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

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

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

 4  goals of the case plan. Reasonable visitation may be

 5  unsupervised and, where appropriate and feasible, may be

 6  frequent and continuing.

 7         (1)  Grandparent or great-grandparent visitation may

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

 9  unless there is a compelling reason for denying such a

10  visitation. The department's caseworker shall arrange the

11  visitation to which a grandparent or great-grandparent is

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

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

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

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

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

17  The caseworker shall document the reasons for any decision to

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

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

20  visitation pursuant to this section shall not be restricted

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

22  appropriately hugging or kissing his or her grandchild or

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

24  grandparent or great-grandparent and other family members

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

26  dependent child.

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

28  to facilitate a meeting between the child who has been

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

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

31  

                                  7

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2004                                  SB 2992
    32-1819A-04




 1  shall automatically terminate future visitation rights of the

 2  grandparent or great-grandparent.

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

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

 5  pursuant to this section shall terminate.

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

 7  the rights of grandparents or great-grandparents unless the

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

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

10  goals of permanency planning for the child.

11         (6)  In determining whether grandparental or

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

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

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

15  contendere to charges under the following statutes, or similar

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

17  removing minors from the state or concealing minors contrary

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

19  798.02, relating to lewd and lascivious behavior; chapter 800,

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

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

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

23  415.101-415.113 or this chapter and the outcome of the

24  investigation concerning such report.

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

26  39.801, Florida Statutes, is amended to read:

27         39.801  Procedures and jurisdiction; notice; service of

28  process.--

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

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

31  following requirements must be met:

                                  8

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2004                                  SB 2992
    32-1819A-04




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

 2  advisory hearing for the petition to terminate parental rights

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

 4  following persons, specifically notifying them that a petition

 5  has been filed:

 6         1.  The parents of the child.

 7         2.  The legal custodians of the child.

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

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

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

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

12         5.  Any grandparent or great-grandparent entitled to

13  notice of priority for adoption under s. 63.0425.

14         6.  Any prospective parent who has been identified

15  under s. 39.503 or s. 39.803.

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

17  representative of the guardian ad litem program, if the

18  program has been appointed.

19  

20  The document containing the notice to respond or appear must

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

22  of the document, the following or substantially similar

23  language:  "FAILURE TO PERSONALLY APPEAR AT THIS ADVISORY

24  HEARING CONSTITUTES CONSENT TO THE TERMINATION OF PARENTAL

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

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

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

28  ATTACHED TO THIS NOTICE."

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

30  (c) and (d) of subsection (4), and subsection (6) of section

31  61.13, Florida Statutes, are amended to read:

                                  9

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2004                                  SB 2992
    32-1819A-04




 1         61.13  Custody and support of children; visitation

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

 3         (2)

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

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

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

 7  the Uniform Child Custody Jurisdiction and Enforcement Act. It

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

 9  child has frequent and continuing contact with both parents

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

11  dissolved and to encourage parents to share the rights and

12  responsibilities, and joys, of childrearing. After considering

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

14  same consideration as the mother in determining the primary

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

16  child.

17         2.  The court shall order that the parental

18  responsibility for a minor child be shared by both parents

19  unless the court finds that shared parental responsibility

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

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

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

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

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

25  presumption is not rebutted, shared parental responsibility,

26  including visitation, residence of the child, and decisions

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

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

29  obligation to provide financial support. If the court

30  determines that shared parental responsibility would be

31  detrimental to the child, it may order sole parental

                                  10

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2004                                  SB 2992
    32-1819A-04




 1  responsibility and make such arrangements for visitation as

 2  will best protect the child or abused spouse from further

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

 4  domestic violence or child abuse or the existence of an

 5  injunction for protection against domestic violence, the court

 6  shall consider evidence of domestic violence or child abuse as

 7  evidence of detriment to the child.

 8         a.  In ordering shared parental responsibility, the

 9  court may consider the expressed desires of the parents and

10  may grant to one party the ultimate responsibility over

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

12  responsibilities between the parties based on the best

13  interests of the child. Areas of responsibility may include

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

15  other responsibilities that the court finds unique to a

16  particular family.

17         b.  The court shall order "sole parental

18  responsibility, with or without visitation rights, to the

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

20  child.

21         c.  The court may award the grandparents or

22  great-grandparents visitation rights with a minor child

23  pursuant to the criteria set forth in s. 752.011 if it is in

24  the child's best interest. Grandparents or great-grandparents

25  have legal standing to seek judicial enforcement of such an

26  award. This section does not require that grandparents or

27  great-grandparents be made parties to or given notice of

28  dissolution pleadings or proceedings. However, if separate

29  actions under this section and s. 752.011 are pending

30  concurrently, courts are strongly encouraged to consolidate

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

                                  11

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2004                                  SB 2992
    32-1819A-04




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

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

 3  solely for the purpose of permitting visitation by the

 4  grandparents or great-grandparents.

 5         3.  Access to records and information pertaining to a

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

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

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

 9  rights under this subparagraph apply to either parent unless a

10  court order specifically revokes these rights, including any

11  restrictions on these rights as provided in a domestic

12  violence injunction. A parent having rights under this

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

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

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

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

17  providers.

18         (4)

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

20  noncustodial parent's, or grandparent's, or

21  great-grandparent's visitation rights without proper cause,

22  the court shall, after calculating the amount of visitation

23  improperly denied, award the noncustodial parent, or

24  grandparent, or great-grandparent a sufficient amount of extra

25  visitation to compensate the noncustodial parent, or

26  grandparent, or great-grandparent, which visitation shall be

27  ordered as expeditiously as possible in a manner consistent

28  with the best interests of the child and scheduled in a manner

29  that is convenient for the person deprived of visitation. In

30  ordering any makeup visitation, the court shall schedule such

31  visitation in a manner that is consistent with the best

                                  12

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2004                                  SB 2992
    32-1819A-04




 1  interests of the child or children and that is convenient for

 2  the noncustodial parent, or grandparent, or great-grandparent.

 3  In addition, the court:

 4         1.  May order the custodial parent to pay reasonable

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

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

 7  visitation rights or make up improperly denied visitation;

 8         2.  May order the custodial parent to attend the

 9  parenting course approved by the judicial circuit;

10         3.  May order the custodial parent to do community

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

12  the child;

13         4.  May order the custodial parent to have the

14  financial burden of promoting frequent and continuing contact

15  when the custodial parent and child reside further than 60

16  miles from the noncustodial parent;

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

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

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

20  the child; or

21         6.  May impose any other reasonable sanction as a

22  result of noncompliance.

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

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

25  deems appropriate.

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

27  may not deny shared parental responsibility, custody, or

28  visitation rights to a parent, or grandparent, or

29  great-grandparent solely because that parent, or grandparent,

30  or great-grandparent is or is believed to be infected with

31  human immunodeficiency virus; but the court may condition such

                                  13

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2004                                  SB 2992
    32-1819A-04




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

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

 3  the Centers for Disease Control and Prevention of the United

 4  States Public Health Service or by the Department of Health

 5  for preventing the spread of human immunodeficiency virus to

 6  the child.

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

 8  Statutes, is amended to read:

 9         63.0425  Grandparent's or great-grandparent's right to

10  adopt.--

11         (1)  When a child has lived with a grandparent or

12  great-grandparent for at least 6 months during within the

13  24-month period immediately preceding the filing of a petition

14  for termination of parental rights pending adoption, the

15  adoption entity shall notify provide notice to that

16  grandparent or great-grandparent of the hearing on the

17  petition for termination of parental rights pending adoption.

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

19  Statutes, is amended to read:

20         63.172  Effect of judgment of adoption.--

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

22  relationship of parent and child having been previously

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

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

25  right of inheritance from or through the deceased parent is

26  unaffected by the adoption and, unless the court orders

27  otherwise, the adoption will not terminate any grandparental

28  or great-grandparental rights delineated under chapter 752.

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

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

31  great-grandparent, aunt, or uncle.

                                  14

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2004                                  SB 2992
    32-1819A-04




 1         Section 11.  This act shall take effect July 1, 2004.

 2  

 3            *****************************************

 4                          SENATE SUMMARY

 5    Provides for court-ordered visitation by grandparents or
      great-grandparents in certain circumstances. Provides for
 6    appointment of a guardian ad litem and for family
      mediation if the court makes a preliminary finding that
 7    the minor is threatened with demonstrable significant
      mental or emotional harm in the absence of such
 8    visitation. Requires court-ordered evaluation of the
      child if mediation fails. Provides for a hearing to
 9    determine whether the minor is threatened with
      demonstrable significant mental or emotional harm.
10    Provides criteria for such a determination. Provides for
      venue. Provides for awarding attorney's fees and costs.
11    Applies the Uniform Child Custody Jurisdiction and
      Enforcement Act. Encourages consolidation of legal
12    actions under ss. 61.13 and 752.011, F.S. Includes
      references to great-grandparents in definitions relating
13    to dependent children. Provides for great-grandparents'
      visitation rights. Provides for a great-grandparent's
14    right to notice of a hearing on termination of parental
      rights pending adoption. Provides for great-grandparents'
15    visitation rights and standing with regard to evaluating
      custody arrangements.
16  

17  

18  

19  

20  

21  

22  

23  

24  

25  

26  

27  

28  

29  

30  

31  

                                  15

CODING: Words stricken are deletions; words underlined are additions.