Florida Senate - 2009                             CS for SB 1052
       
       
       
       By the Committee on Children, Families, and Elder Affairs; and
       Senator Joyner
       
       
       
       586-02701-09                                          20091052c1
    1                        A bill to be entitled                      
    2         An act relating to grandparental visitation; creating
    3         s. 752.011, F.S.; authorizing the grandparent of a
    4         minor child to petition a court for visitation under
    5         certain circumstances; providing a rebuttable
    6         presumption in favor of the minor’s parent; requiring
    7         a preliminary hearing on harm to the minor resulting
    8         from denial of visitation; providing for the payment
    9         of fees and costs by a petitioner who fails to make a
   10         prima facie showing of harm; authorizing appointment
   11         of a guardian ad litem and mediation following a prima
   12         facie showing of harm; providing for a home-study
   13         investigation or professional evaluation of the minor
   14         if mediation fails; authorizing grandparental
   15         visitation if the court makes specified findings;
   16         requiring clear and convincing evidence that the
   17         denial of visitation has caused or is likely to cause
   18         demonstrable harm to the child’s health, safety, or
   19         welfare; providing factors for court consideration in
   20         determining whether there is harm to the minor;
   21         providing for application of the Uniform Child Custody
   22         Jurisdiction and Enforcement Act; encouraging the
   23         consolidation of certain concurrent actions; providing
   24         for modification of an order awarding grandparental
   25         visitation; limiting the frequency of actions seeking
   26         visitation; providing relief to the grandparent if the
   27         parent unreasonably denies or interferes with court
   28         ordered visitation; prohibiting visitation subsequent
   29         to adoption except under certain circumstances;
   30         providing for application of sanctions for unsupported
   31         claims or defenses; providing for venue; amending s.
   32         752.015, F.S.; conforming a cross-reference; creating
   33         s. 752.071, F.S.; providing conditions under which a
   34         court may terminate a grandparent visitation order
   35         upon adoption of a minor child by a stepparent or
   36         close relative; repealing s. 752.01, F.S., relating to
   37         actions for grandparental visitation; repealing s.
   38         752.07, F.S., relating to the effect of adoption of a
   39         child by a stepparent on grandparent visitation;
   40         providing an effective date.
   41  
   42  Be It Enacted by the Legislature of the State of Florida:
   43  
   44         Section 1. Section 752.011, Florida Statutes, is created to
   45  read:
   46         752.011Petition for grandparental visitation.—
   47         (1)A grandparent of an unmarried minor child may petition
   48  the court for reasonable visitation with the minor if the parent
   49  of the minor has denied visitation to the grandparent. There is
   50  a rebuttable presumption that a fit parent’s decision to deny a
   51  grandparent reasonable visitation with the minor is in the
   52  child’s best interest
   53         (2)The petitioner must file a verified petition alleging
   54  that the denial of visitation has caused, or is likely to cause,
   55  demonstrable harm to the minor’s health, safety, or welfare. The
   56  verified petition must include the specific facts and
   57  circumstances upon the basis of which visitation is sought.
   58         (3)Upon the filing of a verified petition by a grandparent
   59  for visitation, the court shall hold a preliminary hearing to
   60  determine whether the petitioner has made a prima facie showing
   61  that the denial of visitation has caused, or is likely to cause,
   62  demonstrable harm to the minor’s health, safety, or welfare.
   63  Absent such showing, the court shall dismiss the petition and
   64  shall award reasonable attorney’s fees and costs to be paid by
   65  the petitioner to the respondent.
   66         (4)If the court finds that there is prima facie evidence
   67  that the denial of visitation has caused, or is likely to cause,
   68  demonstrable harm to the minor’s health, safety, or welfare, the
   69  court may appoint a guardian ad litem pursuant to s. 61.401 and
   70  shall order the matter to family mediation as provided in s.
   71  752.015.
   72         (5)If mediation fails to yield a resolution, the court may
   73  order a home-study investigation or a professional evaluation of
   74  the minor pursuant to the Florida Family Law Rules of Procedure,
   75  absent the availability of comparable evidence of the findings
   76  expected from such investigation or evaluation.
   77         (6)After conducting a hearing on the issue of visitation,
   78  the court may award reasonable visitation to the grandparent
   79  with respect to the minor if the court finds by clear and
   80  convincing evidence that the denial of visitation has caused, or
   81  is likely to cause, demonstrable harm to the minor’s health,
   82  safety, or welfare, and that visitation with the grandparent
   83  will alleviate or mitigate such harm.
   84         (7)In assessing demonstrable harm under subsection (6),
   85  the court shall consider the totality of the circumstances
   86  affecting the physical, mental, and emotional well-being of the
   87  minor, including:
   88         (a)The love, affection, and other emotional ties existing
   89  between the minor and the grandparent, including those resulting
   90  from the relationship that had been previously allowed by the
   91  minor’s parent.
   92         (b)The length and quality of the prior relationship
   93  between the minor and the grandparent, including the extent to
   94  which the grandparent was involved in providing regular care and
   95  support to the minor.
   96         (c)Whether the grandparent established, or attempted to
   97  establish, ongoing personal contact with the minor.
   98         (d)The reasons the parent made the decision to end contact
   99  or visitation between the minor and the grandparent which had
  100  been previously allowed by the parent.
  101         (e)Whether there has been demonstrable significant mental
  102  or emotional harm to the minor as the result of disruption in
  103  the family unit, for which the minor derived support and
  104  stability from the grandparental relationship, and whether the
  105  continuation of that support and stability is likely to prevent
  106  further harm.
  107         (f)The existence or threat of mental injury to the minor
  108  as defined in s. 39.01.
  109         (g)The present mental, physical, and emotional needs and
  110  health of the minor.
  111         (h)The present mental, physical, and emotional health of
  112  the grandparent.
  113         (i)The recommendations of the minor’s guardian ad litem,
  114  if one is appointed.
  115         (j)The results of the home study investigation or
  116  professional evaluation of the minor, if one is ordered pursuant
  117  to subsection (5).
  118         (k)The preference of the minor, if the minor is determined
  119  to be of sufficient maturity to express a preference.
  120         (l)If a parent is deceased, any written testamentary
  121  statement by the deceased parent requesting that visitation with
  122  the grandparent be granted or stating a belief that such
  123  visitation would reduce or mitigate demonstrable significant
  124  mental or emotional harm to the minor resulting from the
  125  parent’s death. The absence of such a testamentary statement
  126  does not provide evidence that the deceased parent would have
  127  objected to the requested visitation.
  128         (m)Whether the parents of the minor disagree on whether to
  129  allow, or the extent of, grandparent visitation.
  130         (n)Whether the visitation will materially harm the parent
  131  child relationship.
  132         (o)Such other factors as the court considers necessary in
  133  making its determination.
  134         (8)Part II of chapter 61, the Uniform Child Custody
  135  Jurisdiction and Enforcement Act, applies to actions brought
  136  under this chapter.
  137         (9)If separate actions under this section and s. 61.13 are
  138  pending concurrently, courts are strongly encouraged to
  139  consolidate the actions in order to minimize the burden of
  140  litigation of grandparent visitation on the minor and the
  141  parties.
  142         (10)An order for grandparent visitation may be modified
  143  upon a showing by the person petitioning for modification of a
  144  substantial change in circumstances and that modifying
  145  visitation is in the best interest of the minor.
  146         (11)An original action requesting visitation under this
  147  section may be filed by a grandparent only once during any 2
  148  year period, except on good cause shown that the denial of
  149  visitation has caused, or is likely to cause, demonstrable harm
  150  to the minor’s health, safety, or welfare, which was not known
  151  to the grandparent at the time of filing an earlier action.
  152         (12)If a grandparent has been granted visitation pursuant
  153  to this section and such visitation has been unreasonably denied
  154  or otherwise unreasonably interfered with by the minor’s parent,
  155  the grandparent may file a motion with the court for enforcement
  156  of visitation.
  157         (a)Upon filing the motion, the court shall direct the
  158  parties to family mediation as provided in s. 752.015 and set a
  159  hearing on the merits of the motion.
  160         (b)After completion of any mediation ordered pursuant to
  161  paragraph (a), the mediator shall submit the record of mediation
  162  termination and a summary of the parties’ agreement, if any, to
  163  the court. Upon receipt of the record and summary, the court
  164  shall enter an order in accordance with the parties’ agreement,
  165  if any.
  166         (c)If, after conducting a hearing, the court finds that
  167  the visitation has been unreasonably denied or otherwise
  168  unreasonably interfered with by the parent, the court shall
  169  enter an order providing for one or more of the following:
  170         1.A specific visitation schedule.
  171         2.Visitation that compensates for the visitation denied or
  172  otherwise interfered with, which may be of the same type as the
  173  visitation denied or otherwise interfered with, including
  174  holidays, weekdays, weekends, summers, and at the convenience of
  175  the grandparent.
  176         3.Assessment of reasonable attorney’s fees, mediation
  177  costs, and court costs against the parent.
  178         (d)If the court finds that the motion for enforcement of
  179  visitation has been unreasonably filed or pursued by the
  180  grandparent, the court may assess reasonable attorney’s fees,
  181  mediation costs, and court costs against the grandparent.
  182         (13)The court may not grant grandparent visitation to a
  183  minor child subsequent to a final order of adoption of that
  184  child except as provided in s. 752.071.
  185         (14)Section 57.105 applies to actions brought under this
  186  chapter.
  187         (15)Venue is in the county where the grandchild primarily
  188  resides, unless venue is otherwise governed by chapter 39,
  189  chapter 61, or chapter 63.
  190         Section 2. Section 752.015, Florida Statutes, is amended to
  191  read:
  192         752.015 Mediation of visitation disputes.—It is shall be
  193  the public policy of this state that families resolve
  194  differences over grandparent visitation within the family. It is
  195  shall be the further public policy of this state that when
  196  families are unable to resolve differences relating to
  197  grandparent visitation that the family participate in any formal
  198  or informal mediation services that may be available. If When
  199  families are unable to resolve differences relating to
  200  grandparent visitation and a petition is filed pursuant to s.
  201  752.011 s. 752.01, the court shall, if such services are
  202  available in the circuit, refer the case to family mediation in
  203  accordance with the Florida Family Law Rules of Procedure rules
  204  promulgated by the Supreme Court.
  205         Section 3. Section 752.071, Florida Statutes, is created to
  206  read:
  207         752.071Effect of adoption by stepparent or close
  208  relative.—Following the adoption of a minor child by a
  209  stepparent or close relative, the stepparent or close relative
  210  may petition the court to terminate an order granting
  211  grandparent visitation under this chapter which was entered
  212  prior to the adoption. The court may terminate the order unless
  213  the grandparent is able to show that the criteria of s. 752.011
  214  authorizing the visitation continues to be satisfied.
  215         Section 4. Sections 752.01 and 752.07, Florida Statutes,
  216  are repealed.
  217         Section 5. This act shall take effect upon becoming a law.