Florida Senate - 2017                                    SB 1644
       
       
        
       By Senator Torres
       
       
       
       
       
       15-01400-17                                           20171644__
    1                        A bill to be entitled                      
    2         An act relating to grandparent visitation rights;
    3         amending s. 752.011, F.S.; authorizing a grandparent
    4         of a minor child who has exclusively cared for the
    5         minor child for at least 6 months to petition the
    6         court for court-ordered visitation with the child
    7         under certain circumstances; requiring the court to
    8         consider the totality of the circumstances and
    9         specified criteria in its determination of substantial
   10         mental or emotional harm to the child; providing an
   11         effective date.
   12  
   13         WHEREAS, the Florida Supreme Court has ruled that this
   14  state’s constitutional privacy provision is a guarantee of
   15  greater protection than is afforded by the Federal Constitution,
   16  and
   17         WHEREAS, the Legislature recognizes that this state’s
   18  fundamental right of privacy also protects parents’ right to
   19  raise their children, and
   20         WHEREAS, in certain circumstances, grandparents raise their
   21  grandchildren and care for a minor child for a significant time
   22  without pursuing legal rights or temporary custody of the child,
   23  and
   24         WHEREAS, the termination of the relationship between a
   25  young grandchild and a grandparent who served as the minor
   26  child’s primary caregiver, along with other changes in
   27  environment, may have severe and harmful effects on the minor
   28  child, and
   29         WHEREAS, an unstable environment can compromise the brain
   30  development of minor children, and
   31         WHEREAS, a grandparent who served as the primary caregiver
   32  of a minor child for a significant time should be awarded
   33  visitation with the grandchild if a court determines that ending
   34  the grandparent-grandchild relationship would result in
   35  significant mental or emotional harm to the minor child, and
   36         WHEREAS, the Legislature finds that protecting children
   37  from significant mental or emotional harm is a compelling state
   38  interest, NOW, THEREFORE,
   39  
   40  Be It Enacted by the Legislature of the State of Florida:
   41  
   42         Section 1. Section 752.011, Florida Statutes, is amended to
   43  read:
   44         752.011 Petition for grandparent visitation with a minor
   45  child.—
   46         (1) A grandparent of a minor child may petition the court
   47  for court-ordered visitation with the minor child if:
   48         (a) The whose parents of the minor child are deceased,
   49  missing, or in a persistent vegetative state;, or
   50         (b)whose One parent of the minor child is deceased,
   51  missing, or in a persistent vegetative state and the whose other
   52  parent has been convicted of a felony or an offense of violence
   53  evincing behavior that poses a substantial threat of harm to the
   54  minor child’s health or welfare; or
   55         (c)The minor child was left in the grandparent’s exclusive
   56  care for at least 6 months within 1 year before the filing of
   57  the petition by the grandparent, may petition the court for
   58  court-ordered visitation with the grandchild under this section.
   59         (2)(1) Upon the filing of a petition by a grandparent for
   60  visitation, the court shall hold a preliminary hearing to
   61  determine whether the petitioner has made a prima facie showing
   62  of parental unfitness or significant mental or emotional harm to
   63  the child. Absent such a showing, the court shall dismiss the
   64  petition and may award reasonable attorney fees and costs to be
   65  paid by the petitioner to the respondent.
   66         (3)(2) If the court finds that there is prima facie
   67  evidence that a parent is unfit or that there is significant
   68  mental or emotional harm to the child, the court may appoint a
   69  guardian ad litem and shall refer the matter to family mediation
   70  as provided in s. 752.015. If family mediation does not
   71  successfully resolve the issue of grandparent visitation, the
   72  court shall proceed with a final hearing.
   73         (4)(3) After conducting a final hearing on the issue of
   74  visitation, the court may award reasonable visitation to the
   75  grandparent with respect to the minor child if the court finds
   76  by clear and convincing evidence that a parent is unfit or that
   77  there is significant mental or emotional harm to the child, that
   78  visitation is in the best interest of the minor child, and that
   79  the visitation will not materially harm the parent-child
   80  relationship.
   81         (5) In assessing significant mental or emotional harm to
   82  the child under subsection (4), the court shall consider the
   83  totality of the circumstances affecting the child, including:
   84         (a) The age of the minor child.
   85         (b) The relationship between the minor child and the
   86  parent.
   87         (c) The nature of the parent’s current and past provision
   88  for the minor child’s developmental, cognitive, psychological,
   89  and physical needs.
   90         (d) The parent’s history of criminal behavior, which may
   91  include the frequency of incarceration and the unavailability of
   92  the parent to the minor child due to incarceration.
   93         (e) Whether ending the minor child’s contact or visitation
   94  with the grandparent will place the child in an intolerable
   95  situation.
   96         (f) Other factors that the court considers necessary to
   97  make its determination.
   98         (6)(4) In assessing the best interest of the child under
   99  subsection (4) (3), the court shall consider the totality of the
  100  circumstances affecting the mental and emotional well-being of
  101  the minor child, including:
  102         (a) The love, affection, and other emotional ties existing
  103  between the minor child and the grandparent, including those
  104  resulting from the relationship that had been previously allowed
  105  by the child’s parent.
  106         (b) The length and quality of the previous relationship
  107  between the minor child and the grandparent, including the
  108  extent to which the grandparent was involved in providing
  109  regular care and support for the child.
  110         (c) Whether the grandparent established ongoing personal
  111  contact with the minor child before the death of the parent,
  112  before the onset of the parent’s persistent vegetative state, or
  113  before the parent was missing.
  114         (d) The reasons cited by the respondent parent in ending
  115  contact or visitation between the minor child and the
  116  grandparent.
  117         (e) Whether there has been significant and demonstrable
  118  mental or emotional harm to the minor child as a result of the
  119  disruption in the family unit, whether the child derived support
  120  and stability from the grandparent, and whether the continuation
  121  of such support and stability is likely to prevent further harm.
  122         (f) The existence or threat to the minor child of mental
  123  injury as defined in s. 39.01.
  124         (g) The present mental, physical, and emotional health of
  125  the minor child.
  126         (h) The present mental, physical, and emotional health of
  127  the grandparent.
  128         (i) The recommendations of the minor child’s guardian ad
  129  litem, if one is appointed.
  130         (j) The result of any psychological evaluation of the minor
  131  child.
  132         (k) The preference of the minor child if the child is
  133  determined to be of sufficient maturity to express a preference.
  134         (l) A written testamentary statement by the deceased parent
  135  regarding visitation with the grandparent. The absence of a
  136  testamentary statement is not deemed to provide evidence that
  137  the deceased or missing parent or parent in a persistent
  138  vegetative state would have objected to the requested
  139  visitation.
  140         (m) Other factors that the court considers necessary to
  141  make making its determination.
  142         (7)(5) In assessing material harm to the parent-child
  143  relationship under subsection (4) (3), the court shall consider
  144  the totality of the circumstances affecting the parent-child
  145  relationship, including:
  146         (a) Whether there have been previous disputes between the
  147  grandparent and the parent over childrearing or other matters
  148  related to the care and upbringing of the minor child.
  149         (b) Whether visitation would materially interfere with or
  150  compromise parental authority.
  151         (c) Whether visitation can be arranged in a manner that
  152  does not materially detract from the parent-child relationship,
  153  including the quantity of time available for enjoyment of the
  154  parent-child relationship and any other consideration related to
  155  disruption of the schedule and routine of the parent and the
  156  minor child.
  157         (d) Whether visitation is being sought for the primary
  158  purpose of continuing or establishing a relationship with the
  159  minor child with the intent that the child benefit from the
  160  relationship.
  161         (e) Whether the requested visitation would expose the minor
  162  child to conduct, moral standards, experiences, or other factors
  163  that are inconsistent with influences provided by the parent.
  164         (f) The nature of the relationship between the child’s
  165  parent and the grandparent.
  166         (g) The reasons cited by the parent in ending contact or
  167  visitation between the minor child and the grandparent which was
  168  previously allowed by the parent.
  169         (h) The psychological toll of visitation disputes on the
  170  minor child.
  171         (i) Other factors that the court considers necessary in
  172  making its determination.
  173         (8)(6) Part II of chapter 61 applies to actions brought
  174  under this section.
  175         (9)(7) If actions under this section and s. 61.13 are
  176  pending concurrently, the courts are strongly encouraged to
  177  consolidate the actions in order to minimize the burden of
  178  litigation on the minor child and the other parties.
  179         (10)(8) An order for grandparent visitation may be modified
  180  upon a showing by the person petitioning for modification that a
  181  substantial change in circumstances has occurred and that
  182  modification of visitation is in the best interest of the minor
  183  child.
  184         (11)(9) An original action requesting visitation under this
  185  section may be filed by a grandparent only once during any 2
  186  year period, except on good cause shown that the minor child is
  187  suffering, or may suffer, significant and demonstrable mental or
  188  emotional harm caused by a parental decision to deny visitation
  189  between a minor child and the grandparent, which was not known
  190  to the grandparent at the time of filing an earlier action.
  191         (12)(10) This section does not provide for grandparent
  192  visitation with a minor child placed for adoption under chapter
  193  63 except as provided in s. 752.071 with respect to adoption by
  194  a stepparent or close relative.
  195         (13)(11) Venue shall be in the county where the minor child
  196  primarily resides, unless venue is otherwise governed by chapter
  197  39, chapter 61, or chapter 63.
  198         Section 2. This act shall take effect July 1, 2017.