Do Grandparents Have Visitation Rights in Florida?

In Florida, grandparents have limited options when seeking court-ordered visitation with their grandchildren. Federal and state law prioritize the constitutional rights of parents to raise their children free from third-party interference. Under a new blockbuster opinion, this once steadfast principle was weakened if not eliminated by the DeSantis appointees of the Florida Supreme Court. In time, this may clear the path for new laws expanding grandparent rights over parent objection.

Grandparent Visitation Historically

In the past, Florida law took a permissive stance on grandparent visitation, allowing grandparent visitation over parent objection if it advanced the child’s best interest. [1]

In Padgett (1991), the Florida Supreme Court first recognized the “right to parent” as a fundamental right guaranteed by the Florida Constitution (Right of Privacy, Article I, Section 23), as well as the United States Constitution (14th Amendment, Due Process Clause). [2] Laws that infringe on a fundamental constitutional right are subject to “strict scrutiny.” “Strict scrutiny” means that the government must use the least restrictive means to achieve a compelling state interest when infringing upon the constitutional right. In the context of the “right to parent,” the Court held that the government may pursue its compelling interest of protecting vulnerable children by substituting its judgment over that of a parent only if a child is endangered while in parent care. Endangerment indicates the parent’s decision-making ability is impaired, justifying government intervention. Endangerment requires proof of actual or imminent harm. It is a much more stringent standard than the more lenient best interest standard.

In Beagle (1996), the Florida Supreme Court applied the principles expressed in Padgett to Florida’s grandparent visitation statute. The Court held that laws permitting grandparent visitation over parent objection are unconstitutional without proof that a child is endangered while in parent care. The Court held that laws granting grandparent visitation over parent objection under the best interest standard impermissibly intrude upon a parent’s personal autonomy and individual decision-making authority, including the right to rear children free from third party interference. Third parties like grandparetnts fail to assert a sufficient “compelling interest” to interfere with parental decisions unless it is  proven that parental decisions (such as denying grandparent visitation) endanger a child.

It makes sense to require proof of endangerment or detriment before over-ruling parental decisions. Most people would agree that a relative or non-relative should not be able to take custody of a child from their parent just because the petitioner lives in a better school district, has a bigger home, or owns a pony. Grandparents have had more time to accumulate wealth and status. Retirement allows more time to devote to child rearing. As a practical matter, grandparents are well-positioned to make a compelling best interest argument. But under Beagle, advancement of the child’s best interest is insufficient justification for laws that would infringe on parental decisions (such as the parent’s decision as to who may visit their children).

Recent Changes in Florida Law May Open the Door to Grandparent Visitation Initiatives

Florida Supreme Court Rejects Florida’s Constitutional “Right to Privacy.” In April 2024, the Florida Supreme Court issued a blockbuster opinion that reversed 33 years of legal precedent. The Court implicitly invalidated the “right to parent” as a fundamental constitutional right under Florida law. In Planned Parenthood, the conservative appointees of the Florida Supreme Court re-interpreted Florida’s Constitution, Article 1, Section 23, entitled “Right of Privacy” and paradoxically held that the “the right to be let alone and free from governmental intrusion into a person’s private life” does not extend to individual liberty, personal autonomy, and decision-making, the source of parental rights in Florida. [3] Consequently, the Florida Constitution no longer appears to prohibit laws that interfere with the “right to parent,” including laws that would compel grandparent visitation over parent objection even under the lenient best interest standard.

“Right to Privacy” Under Federal Law. For the time being, the Due Process Clause of the Fourteenth Amendment of the United States Constitution still appears to recognize the “right to parent” as a fundamental constitutional right, requiring proof of endangerment before a third party may substitute its judgment for that of a parent. [4] The Due Process Clause of the United States Constitution allows state laws to give more protection to recognized constitutional rights, but not less. [5] Theoretically, it would be unconstitutional under the U. S. Constitution if Florida were to pass legislation permitting grandparent visitation over parent objection without proof of endangerment. However, federal law is not entirely clear on the subject, potentially permitting infringement of the right to parent even in cases in which the government’s “compelling interest” is something more than promoting the child’s best interest but less than protecting a child from endangerment. [6]

Conclusion

Under existing law, grandparents are unable to directly petition for visitation and time-sharing, except in rare circumstances. Recent changes in Florida constitutional law pave the way for new legislation enabling grandparent visitation over parent objection under a more lenient standard than the currently applicable endangerment standard. Until such legislation is passed, grandparents who meet statutory criteria may still seek visitation by filing a direct petition for time-sharing, by filing a petition for temporary custody by extended family member, or by motion through an open dependency case.

Endnotes
1. Ch. 752, Florida Statutes (2000).
2. See also Richardson (2000); Von Eiff v. Azicri (1998); Saul v. Brunetti (2000).
3. Planned Parenthood of Southwest and Central Florida vs. The State of Florida (2024).
4. Santosky v. Kramer (1982) (“[F]reedom of personal choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment.”); But see Troxel v. Granville (2000) (“[W]e do not consider . . . whether the Due Process Clause requires all nonparental visitation statutes to include a showing of harm or potential harm to the child as a condition precedent to granting visitation. We do not, and need not, define today the precise scope of the parental due process right in the visitation context…. Because much state-court adjudication in this context occurs on a case-by-case basis, we would be hesitant to hold that specific nonparental visitation statutes violate the Due Process Clause as a per se matter.”)
5. The Fourteenth Amendment of the United States Constitution provides, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
6. See Troxel, n.4.

Michael DeVoe is a divorce attorney in Orlando, Florida practicing contested divorce, uncontested divorce, timesharing, visitation, custody, paternity, child support, injunctions, and other family law cases.