Do Grandparents Have Any Rights after Their Child Divorces?

Couples with children who decide to divorce face many challenges as they transition to being single parents. Trying to explain that everyone does not live together anymore is a hard concept for young children to grasp. In addition to losing the family unit, children can find themselves disconnected from family and friends as parents adjust school and living arrangements. One family member that is typically very important to a child’s wellbeing and development is a grandparent. Grandparents hold a special place in a child’s life that is difficult, if not impossible, to replace. However, depending on the circumstances of a divorce, a parent may decide it best to limit or deny a grandparent access to a child. This decision can be devastating for the child and grandparent alike, and Florida law recognizes that visitation with a grandparent should be extended some degree of protection. A number of states have laws on grandparent visitation that vary on how extensive the grandparent’s right to see a child is. A woman from Illinois was recently charged with child neglect for violating court-ordered visitation with her daughter’s paternal grandparents. Florida is on the more conservative side when it comes to grandparent visitation rights, and will only grant it under specific circumstances. This stance is reflective of the strong deference given to parents to decide who should have access to their child.

Petitioning for Visitation

A grandparent may only petition for visitation if one of the following is true:

• both parents are missing, deceased or in a permanent vegetative state; or
• one parent is missing, deceased or in a vegetative state, and the other parent has been convicted of a felony or violent crime that shows the parent poses a substantial threat to the child’s health or welfare.

Thus, the parents must be unavailable to care for their child, and, in a practical sense, the grandparent offers the closest opportunity possible to learn about the absent parent. As a preliminary step to considering the petition, the court must first determine if the parents are unfit or pose a substantial threat. Unless one of these options is answered in the affirmative, the petition will not proceed for full consideration. In addition to assessment of the parents, the court also looks at what is in the best interests of the child, and whether visitation with the grandparent would damage the parent/child relationship.

Factors Used to Evaluate the Petition

The best interests of the child is always a paramount consideration in any family court proceeding. In the context of grandparent visitation, the court looks at:

• the emotional ties between the grandparent and child, especially if established when access was previously allowed;
• the length and quality of the grandparent/child relationship, including if the grandparent provided regular care and support;
• the reasons given by the parent for cutting off visitation;
• if the child suffered harm due to the disruption in the grandparent relationship, and if the grandparent’s stability and support could prevent further harm;
• the mental, physical and emotional health the of the grandparent and child; and
• the child’s preference, if mature enough to make a reasoned decision.

When it comes to evaluating the impact of grandparent visitation on the parent/child relationship, the court considers several factors, including:

• previous disputes between the parents and grandparents over childcare;
• if the visitation would compromise or interfere with the parent’s authority;
• whether visitation would expose the child to morals, beliefs or practices that conflict with parent’s wishes; and
• the psychological effect of the visitation disputes on the child.

Consult a Family Law Attorney

If you are struggling with a child visitation dispute, talk to a family law attorney about your rights and obligations. Parents have a lot of leeway to decide who can see their child, outside of the other parent. The All Family Law Group, P.A. helps individuals in the Tampa Bay area resolve a variety of family law issues, including child custody and visitation. Contact the Tampa divorce attorneys and family lawyers at All Family Law Group, P.A. in Tampa Bay at 813-816-2232 for a consultation at no charge or email us.

by Lynette Silon-Laguna Google+

   

New Grandparents’ Rights Bill Took Effect July 1

Michelle Parker, the mother of two young children, suddenly disappeared after she appeared on an episode of “The People’s Court” with her ex-fiancé, who was also the father of her children. Parker was reported missing sometime after dropping the children off at her ex-fiancé’s house in 2013. Her body has not been discovered and the criminal case relating to her disappearance was dismissed in 2014. Parker’s parents have not been allowed to see their grandchildren, as the ex-fiancé refuses to allow them visitation.

Previously, grandparents’ rights were difficult and complicated to establish in Florida, with courts only allowing grandparents to sue for visitation if the parents had divorced, a parent had deserted the child, or the child was born out of wedlock. As of July 1st, 2015, however, grandparents will be allowed to petition for visitation in additional circumstances, including the case of Michelle Parker’s parents.

What Are the Additional Circumstances?

According to the new law, grandparents can petition for visitation of a minor child where both parents or one of the parents is (1) deceased, (2) missing, (3) in a persistent vegetative state, or (4) has been convicted of a felony or an offense of violence showing behavior that poses a substantial threat of harm to the minor child’s health or welfare.

What is the Process?

The grandparents must petition the court for visitation rights and meet the criteria laid out under the law. In cases like Michelle Parker–where a parent is not alive or missing– the court would weigh various factors in determining whether to award visitation. In order for grandparents to qualify, the court would consider the grandparents’ previous relationship with the child and the mental, physical and emotional health of both the child and the grandparents. The reason why the grandparents were denied visitation would have to be considered as well.

In situations where a parent is not deceased, missing, or impaired, the court will hold a preliminary hearing to determine whether there exists a “prima facie showing” of parental unfitness or significant harm to the child. Essentially, the court is looking for enough information to establish a fact or raise a presumption that a parent is unfit or poses significant harm to the child. If the grandparent fails to make this preliminary showing, the court shall dismiss the petition and may award reasonable attorney’s fees and costs to be paid by the grandparents to the respondent.

However, if the grandparents do establish enough evidence to meet the initial burden, the court may appoint a guardian ad litem and refer the matter to mediation. Should mediation prove unsuccessful, the matter will proceed to a final hearing.

If at the final hearing the court finds, by clear and convincing evidence (1) a parent is either unfit or poses significant harm to the child (or is deceased or missing), (2) visitation is in the best interest of the child, and (3) the visitation will not materially harm the parent-child relationship, the court may award reasonable visitation to the grandparent.

When considering what qualifies as the “best interest of the child” the court will look to the emotional well being of the child, the length and quality of the previous relationship between the child and grandparent, the reasons the parent initially refused visitation, any emotional harm caused by the disruption of the family unit, and other relevant circumstances. All of these and other relevant factors will be taken into consideration when determining if visitation is in the child’s best interest.

How Do I Proceed?

If you are considering filing for visitation as a grandparent, you are the respondent in a grandparent visitation suit, or you have questions on how the new law affects your case, contact the Tampa family and divorce lawyers at All Family Law Group, P.A. in Tampa Bay at 813-816-2232 for a consultation at no charge or email us.

By Lynette Silon-Laguna Google+