If you are a grandparent who is raising grandchild(ren) on a full-time basis or who only wants to be able to care for the grandchild(ren) on a temporary basis on matters such as medical and / or day to-day care, perhaps simply as a backup for the parent(s), you might assume that you have rights to custody, visitation, and decision-making by virtue of being a grandparent. Unfortunately, that is not the case.
Although more and more grandparents are becoming the safety nets in their grandchild(ren)’s life with some grandparents raising their grandchild(ren) when the child’s parents are unable or unwilling to raise their child due to incarceration, drug or alcohol abuse, or when the hands-on parent is deceased and the surviving parent is unwilling to take on the task of raising his or her child, etc., a recent case on this issue, the Fazzini vs. Davis case, indicates that it is far from a slam dunk for Florida’s grandparents to get rights to their grandchildren.
In particular, the Fazzini court stated that Florida’s public policy subordinates grandparent visitation rights to the superior rights of a parent. Fazzini v. Davis, 98 So. 3d 98, 103 (Fla. 2d DCA 2012). The Fazzini Court further stated that:
[In] Florida the grandparents’ interests, and even the best interest of the children, must yield to the fundamental right of privacy when demanded by the parent except where the state has a compelling interest, as when it acts to prevent demonstrable harm to the child. … [T]he maternal grandmother in this case has virtually no rights as a grandparent in our state because of the privacy right’s protection enshrined in our state constitution. Art. I, § 23, Fla. Const. (“Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein.”) …
In Von Eiff v. Azicri, 720 So. 2d 510 (Fla. 1998), the Florida Supreme Court gave constitutional dimension to the operational impact of Florida citizens’ right to privacy in the interplay between parent and grandparent. Specifically, the court concluded that section 752.01(1)(a), Florida Statutes, which authorized an award of grandparent visitation rights when one or both parents of the grandchild were deceased, was facially unconstitutional. The court found that this statute infringed upon a parent’s protected liberty interest in decisions regarding the best manner to raise his or her children, and the government’s authority to intrude upon this fundamental right only arose upon a showing of demonstrable harm to the child. The supreme court’s precisely phrased rationale is applicable to Mr. Fazzini’s case.
[T]he death of a biological parent may be a traumatic event for a child and a family may deal with that tragic event in many different ways. … [However], it is irrelevant, to this constitutional analysis, that it might in many instances be ‘better’ or ‘desirable’ for a child to maintain contact with a grandparent. … Thus, Florida’s constitutional right of privacy and decisional law give to [a] parent the sole authority to determine what is best for his child, without interference from a grandparent.
Fazzini v. Davis, 98 So. 3d 98 (Fla. 2d DCA 2012) (internal citations omitted).
Consequently, although Chapter 752 of the Florida Statutes still exists and still contains language which purports to provide grandparents with visitation rights to their grandchildren, the Fazzini decision as well as other decisions clearly show how this Chapter 752 has been declared unconstitutional as being a violation of the Florida Constitution and, therefore, grandparents who are seeking relief under Chapter 752 should look elsewhere.
Chapter 751 of the Florida Statutes enables grandparents to gain concurrent custody of their grandchild along with the child’s biological parent(s).
Pursuant to Chapter 751 of the Florida Statutes, any extended family member, including grandparents, may bring a proceeding in the circuit court to determine the temporary or concurrent custody of a minor child.
However, apart from a Chapter 751 proceeding, there is another way in which grandparents may acquire rights to their grandchild(ren). The easiest way for grandparents to gain authority over their grandchild(ren) without going to court is to have a parent execute a power of attorney in favor of the grandparent(s) wherein the parent(s) grant(s) the grandparent(s) the right to care for their child(ren) in the parent’s absence. Such power of attorney generally provides a grandparent with the right to provide temporary care to their grandchild(ren) on matters such as medical and dental care, day to day care, etc.
The parent can use such power of attorney to grant numerous powers to a grandparent such as the right to make decisions in regard to the child’s health, education, and general welfare. That same parent can also limit the powers to just medical decisions, etc. Although gaining rights to a grandchild through a power of attorney is the easiest way for grandparents to get rights to their grandchild(ren), this method will only be feasible if both the parent(s) and the grandparent(s) are in agreement as to the extent of care the grandparent(s) may provide to the grandchild(ren). This is the case because it is the parent, after all, who must sign the power of attorney in the first place.
Also, since it is a parent who grants rights to a grandparent through a power of attorney, that same parent can just as easily take those rights away from a grandparent; the parent may revoke the power of attorney at any time without any court order as parents continue to have legal rights to their children while the power of attorney is in effect.
The only other avenue for a grandparent to gain rights to their grandchild is under Chapter 39. This chapter provides a maternal or paternal grandparent as well as a step-grandparent with reasonable visitation with his or her grandchild but only if (1) that grandchild has been adjudicated a dependent child and taken from the physical custody of the parent and only if (2) appropriate under the circumstances of a particular case. See section 39.509, Florida Statutes.
So it is far from a slam dunk for grandparents to get rights to their grandchildren in Florida at this time.