Florida Senate - 2014                                     SB 750
       By Senator Abruzzo
       25-00418-14                                            2014750__
    1                        A bill to be entitled                      
    2         An act relating to the rights of grandparents and
    3         great-grandparents; amending s. 39.01, F.S.; revising
    4         the definition of the term “next of kin” to include
    5         great-grandparents for purposes of various proceedings
    6         relating to children; amending s. 39.509, F.S.;
    7         providing great-grandparents the same visitation
    8         rights as grandparents; amending ss. 39.801 and
    9         63.0425, F.S.; providing for a great-grandparent’s
   10         right to notice of adoption; repealing s. 752.01,
   11         F.S., relating to actions by a grandparent for
   12         visitation rights; creating s. 752.011, F.S.;
   13         authorizing the grandparent of a minor child to
   14         petition a court for visitation under certain
   15         circumstances; requiring a preliminary hearing;
   16         providing for the payment of attorney fees and costs
   17         by a petitioner who fails to make a prima facie
   18         showing of harm; authorizing grandparent visitation if
   19         the court makes specified findings; providing factors
   20         for court consideration; providing for application of
   21         the Uniform Child Custody Jurisdiction and Enforcement
   22         Act; encouraging the consolidation of certain
   23         concurrent actions; providing for modification of an
   24         order awarding grandparent visitation; limiting the
   25         frequency of actions seeking visitation; limiting
   26         application to a minor child placed for adoption;
   27         providing for venue; repealing s. 752.07, F.S.,
   28         relating to the effect of adoption of a child by a
   29         stepparent on grandparent visitation rights; creating
   30         s. 752.071, F.S.; providing conditions under which a
   31         court may terminate a grandparent visitation order
   32         upon adoption of a minor child by a stepparent or
   33         close relative; amending ss. 39.6221, 39.6231, 63.087,
   34         63.172, and 752.015, F.S.; conforming provisions and
   35         cross-references to changes made by the act; providing
   36         an effective date.
   38  Be It Enacted by the Legislature of the State of Florida:
   40         Section 1. Subsection (45) of section 39.01, Florida
   41  Statutes, is amended to read:
   42         39.01 Definitions.—When used in this chapter, unless the
   43  context otherwise requires:
   44         (45) “Next of kin” means an adult relative of a child who
   45  is the child’s brother, sister, grandparent, great-grandparent,
   46  aunt, uncle, or first cousin.
   47         Section 2. Section 39.509, Florida Statutes, is amended to
   48  read:
   49         39.509 Visitation rights of grandparents and great
   50  grandparents Grandparents rights.—Notwithstanding any other
   51  provision of law, a maternal or paternal grandparent or great
   52  grandparent as well as a step-grandparent or step-great
   53  grandparent stepgrandparent is entitled to reasonable visitation
   54  with his or her grandchild or great-grandchild who has been
   55  adjudicated a dependent child and taken from the physical
   56  custody of the parent unless the court finds that such
   57  visitation is not in the best interest of the child or that such
   58  visitation would interfere with the goals of the case plan.
   59  Reasonable visitation may be unsupervised and, where appropriate
   60  and feasible, may be frequent and continuing. An Any order for
   61  visitation or other contact must conform to the provisions of s.
   62  39.0139.
   63         (1) Grandparent or great-grandparent visitation may take
   64  place in the home of the grandparent or great-grandparent unless
   65  there is a compelling reason for denying such a visitation. The
   66  department’s caseworker shall arrange the visitation to which a
   67  grandparent or great-grandparent is entitled pursuant to this
   68  section. The state may shall not charge a fee for any costs
   69  associated with arranging the visitation. However, the
   70  grandparent or great-grandparent shall pay for the child’s cost
   71  of transportation if when the visitation is to take place in the
   72  grandparent’s or great-grandparent’s home. The caseworker shall
   73  document the reasons for any decision to restrict a
   74  grandparent’s or great-grandparent’s visitation.
   75         (2) A grandparent or great-grandparent entitled to
   76  visitation pursuant to this section may shall not be restricted
   77  from appropriate displays of affection to the child, such as
   78  appropriately hugging or kissing his or her grandchild or great
   79  grandchild. Gifts, cards, and letters from the grandparent or
   80  great-grandparent and other family members may shall not be
   81  denied to a child who has been adjudicated a dependent child.
   82         (3) Any attempt by a grandparent or great-grandparent to
   83  facilitate a meeting between the child who has been adjudicated
   84  a dependent child and the child’s parent or legal custodian, or
   85  any other person in violation of a court order shall
   86  automatically terminate future visitation rights of the
   87  grandparent or great-grandparent.
   88         (4) When the child has been returned to the physical
   89  custody of his or her parent, the visitation rights granted
   90  pursuant to this section shall terminate.
   91         (5) The termination of parental rights does not affect the
   92  rights of grandparents or great-grandparents unless the court
   93  finds that such visitation is not in the best interest of the
   94  child or that such visitation would interfere with the goals of
   95  permanency planning for the child.
   96         (6) In determining whether grandparental or great
   97  grandparental visitation is not in the child’s best interest,
   98  the court consideration may consider be given to the following:
   99         (a) The finding of guilt, regardless of adjudication, or
  100  entry or plea of guilty or nolo contendere to charges under the
  101  following statutes, or similar statutes of other jurisdictions:
  102         1.Section s. 787.04, relating to removing a minor child
  103  minors from the state or concealing a minor child minors
  104  contrary to court order;
  105         2.Section s. 794.011, relating to sexual battery;
  106         3. Section s. 798.02, relating to lewd and lascivious
  107  behavior;
  108         4. Chapter 800, relating to lewdness and indecent exposure;
  109         5. Section s. 826.04, relating to incest; or
  110         6. Chapter 827, relating to the abuse of children.
  111         (b) The designation by a court as a sexual predator as
  112  defined in s. 775.21 or a substantially similar designation
  113  under laws of another jurisdiction.
  114         (c) A report of abuse, abandonment, or neglect under ss.
  115  415.101-415.113 or this chapter and the outcome of the
  116  investigation concerning such report.
  117         Section 3. Paragraph (a) of subsection (3) of section
  118  39.801, Florida Statutes, is amended to read:
  119         39.801 Procedures and jurisdiction; notice; service of
  120  process.—
  121         (3) Before the court may terminate parental rights, in
  122  addition to the other requirements set forth in this part, the
  123  following requirements must be met:
  124         (a) Notice of the date, time, and place of the advisory
  125  hearing for the petition to terminate parental rights and a copy
  126  of the petition must be personally served upon the following
  127  persons, specifically notifying them that a petition has been
  128  filed:
  129         1. The parents of the child.
  130         2. The legal custodians of the child.
  131         3. If the parents who would be entitled to notice are dead
  132  or unknown, a living relative of the child, unless upon diligent
  133  search and inquiry no such relative can be found.
  134         4. Any person who has physical custody of the child.
  135         5. Any grandparent or great-grandparent entitled to
  136  priority for adoption under s. 63.0425.
  137         6. Any prospective parent who has been identified under s.
  138  39.503 or s. 39.803.
  139         7. The guardian ad litem for the child or the
  140  representative of the guardian ad litem program, if the program
  141  has been appointed.
  143  The document containing the notice to respond or appear must
  144  contain, in type at least as large as the type in the balance of
  145  the document, the following or substantially similar language:
  151  NOTICE.”
  152         Section 4. Section 63.0425, Florida Statutes, is amended to
  153  read:
  154         63.0425 Grandparent’s or great-grandparent’s right to
  155  notice.—
  156         (1) If a child has lived with a grandparent or great
  157  grandparent for at least 6 months within the 24-month period
  158  immediately preceding the filing of a petition for termination
  159  of parental rights pending adoption, the adoption entity shall
  160  provide notice to that grandparent or great-grandparent of the
  161  hearing on the petition.
  162         (2) This section does not apply if the placement for
  163  adoption is the result of the death of the child’s parent and a
  164  different preference is stated in the parent’s will.
  165         (3) This section does not apply in stepparent adoptions.
  166         (4) This section does not contravene the provisions of s.
  167  63.142(4).
  168         Section 5. Section 752.01, Florida Statutes, is repealed.
  169         Section 6. Section 752.011, Florida Statutes, is created to
  170  read:
  171         752.011 Petition for grandparent visitation of a minor
  172  child.—A grandparent of a minor child whose parents are
  173  deceased, missing, or in a permanent vegetative state, or whose
  174  one parent is deceased, missing, or in a permanent vegetative
  175  state and whose other parent has been convicted of a felony or
  176  an offense of violence, may petition the court for court-ordered
  177  visitation with the grandchild under this section.
  178         (1) Upon the filing of a petition by a grandparent for
  179  visitation the court shall hold a preliminary hearing to
  180  determine whether the petitioner has made a prima facie showing
  181  of parental unfitness or significant harm to the child. Absent
  182  such a showing, the court shall dismiss the petition and shall
  183  award reasonable attorney fees and costs to be paid by the
  184  petitioner to the respondent.
  185         (2) If the court finds that there is prima facie evidence
  186  that a parent is unfit or that there is a danger of significant
  187  harm to the child, the court shall proceed toward a final
  188  hearing, may appoint a guardian ad litem, and shall order the
  189  matter to family mediation as provided in s. 752.015.
  190         (3) After conducting a final hearing on the issue of
  191  visitation, the court may award reasonable visitation to the
  192  grandparent with respect to the minor child if the court finds
  193  by clear and convincing evidence that a parent is unfit or that
  194  there is a danger of significant harm to the child, that
  195  visitation is in the best interest of the minor child, and that
  196  the visitation will not materially harm the parent-child
  197  relationship.
  198         (4) In assessing the best interest of the child under
  199  subsection (3), the court shall consider the totality of the
  200  circumstances affecting the mental and emotional well-being of
  201  the minor child, including:
  202         (a) The love, affection, and other emotional ties existing
  203  between the minor child and the grandparent, including those
  204  resulting from the relationship that had been previously allowed
  205  by the child’s parent.
  206         (b) The length and quality of the previous relationship
  207  between the minor child and the grandparent, including the
  208  extent to which the grandparent was involved in providing
  209  regular care and support for the child.
  210         (c) Whether the grandparent established ongoing personal
  211  contact with the minor child before the death of the parent.
  212         (d) The reasons that the surviving parent cited in ending
  213  contact or visitation between the minor child and the
  214  grandparent.
  215         (e) Whether there has been demonstrable significant mental
  216  or emotional harm to the minor child as a result of the
  217  disruption in the family unit from which the child derived
  218  support and stability from the grandparent, and whether the
  219  continuation of that support and stability is likely to prevent
  220  further harm.
  221         (f) The existence or threat to the minor child of mental
  222  injury as defined in s. 39.01.
  223         (g) The present mental, physical, and emotional health of
  224  the minor child.
  225         (h) The present mental, physical, and emotional health of
  226  the grandparent.
  227         (i) The recommendations of the minor child’s guardian ad
  228  litem, if one is appointed.
  229         (j) The results of any psychological evaluation of the
  230  minor child.
  231         (k) The preference of the minor child if the child is
  232  determined to be of sufficient maturity to express a preference.
  233         (l) A written testamentary statement by the deceased parent
  234  regarding visitation with the grandparent. The absence of a
  235  testamentary statement is not deemed to provide evidence that
  236  the deceased parent would have objected to the requested
  237  visitation.
  238         (m) Other factors that the court considers necessary to
  239  making its determination.
  240         (5) In assessing material harm to the parent-child
  241  relationship under subsection (3), the court shall consider the
  242  totality of the circumstances affecting the parent-child
  243  relationship, including:
  244         (a) Whether there have been previous disputes between the
  245  grandparent and the parent over childrearing or other matters
  246  related to the care and upbringing of the minor child.
  247         (b) Whether visitation would materially interfere with or
  248  compromise parental authority.
  249         (c) Whether visitation can be arranged in a manner that
  250  does not materially detract from the parent-child relationship,
  251  including the quantity of time available for enjoyment of the
  252  parent-child relationship and any other consideration related to
  253  disruption of the schedule and routines of the parent and the
  254  minor child.
  255         (d) Whether visitation is being sought for the primary
  256  purpose of continuing or establishing a relationship with the
  257  minor child with the intent that the child benefit from the
  258  relationship.
  259         (e) Whether the requested visitation would expose the minor
  260  child to conduct, moral standards, experiences, or other factors
  261  that are inconsistent with influences provided by the parent.
  262         (f) The nature of the relationship between the child’s
  263  parent and the grandparent.
  264         (g) The reasons that the parent cited in ending contact or
  265  visitation between the minor child and the grandparent which was
  266  previously allowed by the parent.
  267         (h) The psychological toll of visitation disputes on the
  268  minor child.
  269         (i) Other factors that the court considers necessary to
  270  making its determination.
  271         (6) Part II of chapter 61, the Uniform Child Custody
  272  Jurisdiction and Enforcement Act, applies to actions brought
  273  under this section.
  274         (7) If separate actions under this section and s. 61.13 are
  275  pending concurrently, the courts are strongly encouraged to
  276  consolidate the actions in order to minimize the burden of
  277  litigation on the minor child and the other parties.
  278         (8) An order for grandparent visitation may be modified
  279  upon a showing by the person petitioning for modification that a
  280  substantial change in circumstances has occurred and that
  281  modification of visitation is in the best interest of the minor
  282  child.
  283         (9) An original action requesting visitation under this
  284  section may be filed by a grandparent only once during any 2
  285  year period, except on good cause shown that the minor child is
  286  suffering, or may suffer, demonstrable significant mental or
  287  emotional harm caused by a parental decision to deny visitation
  288  between a minor child and the grandparent, which was not known
  289  to the grandparent at the time of filing an earlier action.
  290         (10) This section does not provide for grandparent
  291  visitation with a minor child placed for adoption under chapter
  292  63 except as provided in s. 752.071 with respect to adoption by
  293  a stepparent or close relative.
  294         (11) Venue shall be in the county where the minor child
  295  primarily resides, unless venue is otherwise governed by chapter
  296  39, chapter 61, or chapter 63.
  297         Section 7. Section 752.07, Florida Statutes, is repealed.
  298         Section 8. Section 752.071, Florida Statutes, is created to
  299  read:
  300         752.071 Effect of adoption by stepparent or close
  301  relative.—After the adoption of a minor child by a stepparent or
  302  close relative, the stepparent or close relative may petition
  303  the court to terminate an order granting grandparent visitation
  304  under this chapter which was entered before the adoption. The
  305  court may terminate the order unless the grandparent is able to
  306  show that the criteria of s. 752.011 authorizing the visitation
  307  continue to be satisfied.
  308         Section 9. Subsection (2) of section 39.6221, Florida
  309  Statutes, is amended to read:
  310         39.6221 Permanent guardianship of a dependent child.—
  311         (2) In its written order establishing a permanent
  312  guardianship, the court shall:
  313         (a) List the circumstances or reasons why the child’s
  314  parents are not fit to care for the child and why reunification
  315  is not possible by referring to specific findings of fact made
  316  in its order adjudicating the child dependent or by making
  317  separate findings of fact;
  318         (b) State the reasons why a permanent guardianship is being
  319  established instead of adoption;
  320         (c) Specify the frequency and nature of visitation or
  321  contact between the child and his or her parents;
  322         (d) Specify the frequency and nature of visitation or
  323  contact between the child and his or her grandparents or great
  324  grandparents, under s. 39.509;
  325         (e) Specify the frequency and nature of visitation or
  326  contact between the child and his or her siblings; and
  327         (f) Require that the permanent guardian not return the
  328  child to the physical care and custody of the person from whom
  329  the child was removed without the approval of the court.
  330         Section 10. Subsection (3) of section 39.6231, Florida
  331  Statutes, is amended to read:
  332         39.6231 Permanent placement with a fit and willing
  333  relative.—
  334         (3) In its written order placing the child with a fit and
  335  willing relative, the court shall:
  336         (a) List the circumstances or reasons why reunification is
  337  not possible by referring to specific findings of fact made in
  338  its order adjudicating the child dependent or by making separate
  339  findings of fact;
  340         (b) State the reasons why permanent placement with a fit
  341  and willing relative is being established instead of adoption;
  342         (c) Specify the frequency and nature of visitation or
  343  contact between the child and his or her parents;
  344         (d) Specify the frequency and nature of visitation or
  345  contact between the child and his or her grandparents or great
  346  grandparents, under s. 39.509;
  347         (e) Specify the frequency and nature of visitation or
  348  contact between the child and his or her siblings; and
  349         (f) Require that the relative not return the child to the
  350  physical care and custody of the person from whom the child was
  351  removed without the approval of the court.
  352         Section 11. Paragraph (e) of subsection (4) of section
  353  63.087, Florida Statutes, is amended to read:
  354         63.087 Proceeding to terminate parental rights pending
  355  adoption; general provisions.—
  356         (4) PETITION.—
  357         (e) The petition must include:
  358         1. The minor’s name, gender, date of birth, and place of
  359  birth. The petition must contain all names by which the minor is
  360  or has been known, excluding the minor’s prospective adoptive
  361  name but including the minor’s legal name at the time of the
  362  filing of the petition. In the case of an infant child whose
  363  adoptive name appears on the original birth certificate, the
  364  adoptive name may shall not be included in the petition or, nor
  365  shall it be included elsewhere in the termination of parental
  366  rights proceeding.
  367         2. All information required by the Uniform Child Custody
  368  Jurisdiction and Enforcement Act and the Indian Child Welfare
  369  Act.
  370         3. A statement of the grounds under s. 63.089 upon which
  371  the petition is based.
  372         4. The name, address, and telephone number of any adoption
  373  entity seeking to place the minor for adoption.
  374         5. The name, address, and telephone number of the division
  375  of the circuit court in which the petition is to be filed.
  376         6. A certification of compliance with the requirements of
  377  s. 63.0425 regarding notice to grandparents or great
  378  grandparents of an impending adoption.
  379         Section 12. Subsection (2) of section 63.172, Florida
  380  Statutes, is amended to read:
  381         63.172 Effect of judgment of adoption.—
  382         (2) If one or both parents of a child die without the
  383  relationship of parent and child having been previously
  384  terminated and a spouse of the living parent or a close relative
  385  of the child thereafter adopts the child, the child’s right of
  386  inheritance from or through the deceased parent is unaffected by
  387  the adoption and, unless the court orders otherwise, the
  388  adoption does will not terminate any grandparental or great
  389  grandparental rights delineated under chapter 752. For purposes
  390  of this subsection, a close relative of a child is the child’s
  391  brother, sister, grandparent, great-grandparent, aunt, or uncle.
  392         Section 13. Section 752.015, Florida Statutes, is amended
  393  to read:
  394         752.015 Mediation of visitation disputes.—It is shall be
  395  the public policy of this state that families resolve
  396  differences over grandparent visitation within the family. It is
  397  shall be the further public policy of this state that, when
  398  families are unable to resolve differences relating to
  399  grandparent visitation, that the family participate in any
  400  formal or informal mediation services that may be available. If
  401  When families are unable to resolve differences relating to
  402  grandparent visitation and a petition is filed pursuant to s.
  403  752.011 s. 752.01, the court shall, if such services are
  404  available in the circuit, refer the case to family mediation in
  405  accordance with the Florida Family Law Rules of Procedure rules
  406  promulgated by the Supreme Court.
  407         Section 14. This act shall take effect July 1, 2014.