Do Grandparents Have Visitation Rights in Florida?

In Florida, grandparents face significant legal hurdles when seeking court-ordered visitation with their grandchildren. Federal and state law historically prioritized the constitutional rights of parents to raise their children without unwarranted interference. This stance has been reinforced by numerous court rulings over the years.

Florida Law on Grandparent Visitation as an Independent Action

Under Florida Statute § 752.011, grandparents may file a case for visitation or custody of grandchildren only if:

(i) both parents are deceased, missing, or in a persistent vegetative state;

(ii) one parent is deceased, missing, or in a persistent vegetative state and the other parent has been convicted of a crime that places the child in imminent and substantial risk of harm; or

(iii) one parent is criminally or civilly liable for the death of the other parent.

In the past, Florida law took a much more permissive stance on grandparent visitation, allowing grandparent visitation over parent objection if deemed to be in the child’s best interest. [1] However, in Beagle v. Beagle (1996), the Florida Supreme Court found such laws to be unconstitutional without proof that a child is endangered while in parent care. The Court held that laws granting grandparent visitation over parent objection impermissibly intrude upon personal autonomy and individual decision-making authority, including a parent’s right to rear children free from government interference.

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. [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 interest in 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 detriment or harm. It is a much more stringent standard than the more lenient best interest standard.

In April 2024, the Florida Supreme Court reversed itself. After 33 years of settled jurisprudence, the conservative appointees of the Florida Supreme Court re-interpreted Florida’s Constitution, Article 1, Section 23, entitled “Right of Privacy.” Paradoxically, the DeSantis appointees of the Florida Supreme Court 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. [3] Consequently, the Florida Constitution no longer appears to prohibit laws that would compel grandparent visitation over parent objection (or any other laws that interfere with personal liberty for that matter) so long as they pass the low bar of “rational basis” / “best interest.”

However, 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, subject to strict scrutiny, that requires proof of endangerment before the government may substitute its judgment for that of a parent. [4] The Due Process Clause of the United States Constitution allows states laws to give more protection to recognized constitutional rights, but not less. [5] If Florida were to pass a law that allowed for grandparent visitation over parent objection without proof of endangerment, it would be unconstitutional under the United States Constitution even if not in violation of the Florida Constitution.

Temporary Custody by Extended Family Member

Florida law allows grandparents, and certain other extended family members, to seek temporary custody under specific conditions. According to Chapter 751 of the Florida Statutes, extended family members may petition for custody based on (i) the written consent of both parents or (ii) evidence of endangerment and proof that the child is already living with the petitioning extended family member full-time (not just a temporary visit).

Dependency

In dependency cases filed by DCF, grandparents are entitled to visitation if (i) the child has been adjudicated dependent and (ii) the child is in out-of-home care. Grandparent visitation ends once the child is returned to either parent if either parent objects to the visitation.

Federal Full Faith and Credit

Other states may have more permissive grandparent rights laws that conform with federal law, or that do not conform with federal law but were not timely appealed. Grandparents may enforce visitation orders obtained in other states. In Ledoux-Nottingham v. Downs (2017), the Florida Supreme Court ruled that the state must honor visitation orders issued by courts in other states under the Full Faith and Credit Clause of the U.S. Constitution. While Florida courts cannot issue grandparent visitation orders (except in limited circumstances), they are obligated to enforce valid orders from other states.

Conclusion

In Florida, grandparents do not have the right to file a case to obtain court-ordered visitation or custody over parent objection except in limited circumstances. Federal law prioritizes parental rights, including exclusivity in decision-making, and only permits interference, including substitution of government preference over parent preference, in cases where there is proof of child endangerment that calls a parent’s decision-making into question.

Grandparents seeking custody or visitation rights through an independent action; a temporary custody case; or a dependency case should consult an experienced Florida attorney for help. DeVoe Law Firm has successfully obtained court orders for grandparent visitation in temporary custody and dependency cases. Give us a call today.

Endnotes

1. Ch. 752, Florida Statutes (2000).

2. Richardson v. 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.”