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Can Grandparents Seek Visitation Rights Over a Parent’s Objections?


One of the thornier issues in Florida family law is the legal right of grandparents to seek visitation rights with their grandchildren. If you look at the Florida Statutes, i.e., the laws adopted by the state legislature, you will find provisions allowing court-ordered grandparent visitation rights in limited circumstances. But the Florida courts have been quite reluctant to enforce such statutes based on their understanding of a parent’s “fundamental right of privacy in child rearing autonomy.”

What the Legislature Has Said

The current version of Section 752.011 of the Florida Statutes provides that the grandparent of a minor child may petition a court for visitation rights if the child’s parents are:

  • deceased;
  • missing; or
  • in a persistent vegetative state.

Additionally, a grandparent may apply for visitation rights if one parent falls into any of the categories listed above and the other parent “has been convicted of a felony” or another crime that demonstrates that parent poses a “substantial threat” to the child’s health or safety.

Once a grandparent files a petition, they must still provide “clear and convincing evidence” that:

  • the child’s parent is unfit or there is “significant harm to the child”;
  • allowing the grandparent visitation rights would be in the child’s best interests; and
  • grandparent visitation rights would not “materially harm the parent-child relationship.”

What the Courts Have Said

The fact that a grandparent must first demonstrate “significant harm” to a grandchild is critical due to a series of decisions form the Florida courts. Essentially, the Florida Supreme Court has long held that the state cannot grant any visitation rights to grandparents absent such a finding. The reason for this is that Florida’s Constitution includes a right to “privacy,” which the Court extends to the parent-child relationship. And while the Supreme Court has not directly addressed the constitutionality of Section 752.011, it has invalidated other “grandparent’s rights” provisions of the Florida statutes on this basis.

What the Legislature May Do Next

The issue of grandparent visitation rights has come back into the news recently because of the 2014 murder of Florida State University law professor Dan Markel. Markel’s parents have been denied visitation rights to his children by their mother. Two members of the mother’s family were identified as “persons of interest” in Merkel’s murder, although they have not been formally charged with any crime. Prosecutors believe–but cannot prove–that the mother financed Merkel’s murder so that she could relocate the children to south Florida, according to the Tampa Bay Times.

In early January, Florida State Sen. Jeff Brandes of St. Petersburg introduced Senate Bill 1886. This legislation would amend Section 752.011 to allow grandparents to seek visitation rights in cases where a surviving parent has “been identified by the state attorney as a person of interest or an unindicted co-conspirator in an open homicide” case related to the deceased parent. Brandes said he introduced the bill specifically to address the Markel situation.

Speak with a Boca Raton Family Law Attorney Today

If you have additional questions about how Florida law may affect the ability of a grandparent to seek visitation rights with your children, it is best to speak with a qualified Boca Raton family attorney. Contact WiseLieberman, PLLC, at 561-488-7788 today to discuss your situation with a member of our team.






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