HB 1107 2003
1	CHAMBER ACTION
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6	The Committee on Future of Florida's Families recommends the
7	following:
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9	Committee Substitute
10	Remove the entire bill and insert:
11	A bill to be entitled
12	An act relating to children and families; creating s.
13	752.011, F.S.; providing for court-ordered visitation for
14	grandparents and great-grandparents under certain
15	circumstances; providing for appointment of a guardian ad
16	litem and family mediation if the court makes a
17	preliminary finding that the minor is threatened with
18	demonstrable significant mental or emotional harm without
19	such visitation; requiring court-ordered evaluation of the
20	child if mediation fails; providing for a hearing to
21	determine whether the minor is threatened with harm;
22	providing for attorney's fees and costs; applying the
23	Uniform Child Custody Jurisdiction and Enforcement Act;
24	providing for venue in specified circumstances; repealing
25	s. 752.01, F.S., relating to action by grandparent for
26	right of visitation and when petition shall be granted;
27	encouraging consolidation of actions under ss. 61.13 and
28	752.011, F.S.; amending ss. 752.015 and 752.07, F.S., to
29	conform cross references; amending s. 39.01, F.S.;
30	including references to great-grandparents in definitions
31	relating to dependent children; amending s. 39.509, F.S.;
32	providing for great-grandparents' visitation rights;
33	amending ss. 39.801 and 63.0425, F.S.; providing for a
34	great-grandparent's right to notice of adoption; amending
35	s. 61.13, F.S.; providing for great-grandparents'
36	visitation rights; providing for consolidation of pending
37	actions; conforming provisions relating to custody
38	arrangements to changes made by the act; revising
39	provisions relating to standing of grandparents with
40	regard to custody arrangements; amending s. 63.172, F.S.;
41	conforming references relating to great-grandparental
42	visitation rights under ch. 752, F.S.; providing an
43	effective date.
44
45	Be It Enacted by the Legislature of the State of Florida:
46
47	Section 1. Section 752.011, Florida Statutes, is created
48	to read:
49	752.011 Action by grandparent or great-grandparent for
50	right of visitation; when petition shall be granted.--
51	(1) A grandparent or great-grandparent of a minor may
52	petition for visitation with that minor if:
53	(a) One or both of the parents of the minor are deceased;
54	(b) The marriage of the parents of the minor has been
55	dissolved, whether or not a dissolution action is pending;
56	(c) A parent of the minor has deserted the minor;
57	(d) The minor was born out of wedlock and not later
58	determined to be a minor born within wedlock as provided in s.
59	742.091; or
60	(e) A deceased parent of the minor has made a written
61	testamentary statement requesting that there be visitation
62	between his or her surviving minor child and the grandparent or
63	great-grandparent.
64	(2) Upon the filing of a petition by a grandparent or
65	great-grandparent for visitation rights, the court shall hold a
66	preliminary hearing to find whether there is evidence that the
67	minor is suffering or is threatened with suffering demonstrable
68	significant mental or emotional harm, or harm as defined in s.
69	39.01(30), as a result of a parental decision not to permit
70	visitation or contact with the grandparent or great-grandparent.
71	Absent such a finding, the court shall dismiss the petition and
72	shall award reasonable attorney's fees and costs to be paid by
73	the petitioner to the respondent.
74	(3) If the court finds that there is evidence that the
75	minor is suffering or is threatened with suffering demonstrable
76	significant mental or emotional harm, or harm as defined in s.
77	39.01(30), as a result of a parental decision not to permit
78	visitation or contact with the grandparent or great-grandparent,
79	the court may appoint a guardian ad litem and shall order the
80	matter to family mediation as provided in chapter 44 and Rules
81	12.740 and 12.741, Florida Family Law Rules of Procedure.
82	(4) When mediation fails to yield a resolution, the court
83	shall order a psychological evaluation of the minor pursuant to
84	Rule 12.363, Florida Family Law Rules of Procedure, if
85	comparable evidence of the findings expected from such an
86	evaluation is unavailable.
87	(5) After a hearing on the matter, the court may award
88	reasonable rights of visitation to the grandparent or great-
89	grandparent with respect to the minor if the court finds that:
90	(a) There is clear and convincing evidence that the minor
91	is suffering or is threatened with suffering demonstrable
92	significant mental or emotional harm, or harm as defined in s.
93	39.01(30), as a result of a parental decision not to permit
94	visitation or contact with the grandparent or great-grandparent
95	and that visitation with the grandparent or great-grandparent
96	will alleviate or mitigate the harm.
97	(b) That the visitation will not materially harm the
98	parent-child relationship.
99	(6) Part II of chapter 61, the Uniform Child Custody
100	Jurisdiction and Enforcement Act, applies to actions brought
101	under this chapter.
102	(7) If separate actions under this section and s. 61.13
103	are pending concurrently, courts are strongly encouraged to
104	consolidate the actions in order to minimize the burden of
105	litigation of visitation rights on the minor and the parties.
106	(8) An order of grandparent visitation or great-
107	grandparent visitation may be modified upon a showing of
108	substantial change in circumstances or a showing that visitation
109	is causing material harm to the parent-child relationship.
110	(9) An original action requesting visitation rights under
111	this chapter may be filed by any grandparent or great-
112	grandparent only once during any 2-year period, except on good
113	cause shown that the minor is suffering or threatened with
114	suffering demonstrable significant mental or emotional harm
115	caused by a parental decision to deny or limit contact or
116	visitation between a minor and the grandparent or great-
117	grandparent, which was not known to the grandparent or great-
118	grandparent at the time of filing an earlier action.
119	(10) This section does not provide for visitation rights
120	for grandparents or great-grandparents of minors placed for
121	adoption under chapter 63 except as provided in s. 752.07 with
122	respect to adoption by a stepparent.
123	(11) Section 57.105 applies to actions brought under this
124	chapter.
125	(12) Venue shall be in the county where the grandchild or
126	great-grandchild primarily resides, unless venue is otherwise
127	governed by chapter 39, chapter 61, or chapter 63.
128	Section 2. Section 752.01, Florida Statutes, is repealed.
129	Section 3. Section 752.015, Florida Statutes, is amended
130	to read:
131	752.015 Mediation of visitation disputes.--It shall be the
132	public policy of this state that families resolve differences
133	over grandparent visitation within the family. It shall be the
134	further public policy of this state that when families are
135	unable to resolve differences relating to grandparent visitation
136	that the family participate in any formal or informal mediation
137	services that may be available. When families are unable to
138	resolve differences relating to grandparent visitation and a
139	petition is filed pursuant to s. 752.011s. 752.01, the court
140	shall, if such services are available in the circuit, refer the
141	case to family mediation in accordance with rules promulgated by
142	the Supreme Court.
143	Section 4. Section 752.07, Florida Statutes, is amended to
144	read:
145	752.07 Effect of adoption of child by stepparent on right
146	of visitation; when right may be terminated.--When there is a
147	remarriage of one of the natural parents of a minor child for
148	whom visitation rights may be or may have been granted to a
149	grandparent pursuant to s. 752.011s. 752.01, any subsequent
150	adoption by the stepparent will not terminate any grandparental
151	rights. However, the court may determine that termination of
152	such visitation rights should be terminated based upon the
153	standards for granting such visitation which are set forth in s.
154	752.011is in the best interest of the childand rule
155	accordingly, after affording the grandparent an opportunity to
156	be heard.
157	Section 5. Subsections (46) and (50) of section 39.01,
158	Florida Statutes, are amended to read:
159	39.01 Definitions.--When used in this chapter, unless the
160	context otherwise requires:
161	(46) "Next of kin" means an adult relative of a child who
162	is the child's brother, sister, grandparent, great-grandparent,
163	aunt, uncle, or first cousin.
164	(50) "Participant," for purposes of a shelter proceeding,
165	dependency proceeding, or termination of parental rights
166	proceeding, means any person who is not a party but who should
167	receive notice of hearings involving the child, including foster
168	parents or the legal custodian of the child, identified
169	prospective parents, grandparents or great-grandparentsentitled
170	to priority for adoption consideration under s. 63.0425, actual
171	custodians of the child, and any other person whose
172	participation may be in the best interest of the child. A
173	community-based agency under contract with the department to
174	provide protective services may be designated as a participant
175	at the discretion of the court. Participants may be granted
176	leave by the court to be heard without the necessity of filing a
177	motion to intervene.
178	Section 6. Section 39.509, Florida Statutes, is amended to
179	read:
180	39.509 Grandparents' and great-grandparents'Grandparents
181	rights.--Notwithstanding any other provision of law, a maternal
182	or paternal grandparent or great-grandparentas well as a
183	stepgrandparent or step-great-grandparentis entitled to
184	reasonable visitation with his or her grandchild or great-
185	grandchildwho has been adjudicated a dependent child and taken
186	from the physical custody of the parent unless the court finds
187	that such visitation is not in the best interest of the child or
188	that such visitation would interfere with the goals of the case
189	plan. Reasonable visitation may be unsupervised and, where
190	appropriate and feasible, may be frequent and continuing.
191	(1) Grandparent or great-grandparentvisitation may take
192	place in the home of the grandparent or great-grandparentunless
193	there is a compelling reason for denying such a visitation. The
194	department's caseworker shall arrange the visitation to which a
195	grandparent or great-grandparentis entitled pursuant to this
196	section. The state shall not charge a fee for any costs
197	associated with arranging the visitation. However, the
198	grandparent or great-grandparentshall pay for the child's cost
199	of transportation when the visitation is to take place in the
200	grandparent's or great-grandparent'shome. The caseworker shall
201	document the reasons for any decision to restrict a
202	grandparent's or great-grandparent'svisitation.
203	(2) A grandparent or great-grandparententitled to
204	visitation pursuant to this section shall not be restricted from
205	appropriate displays of affection to the child, such as
206	appropriately hugging or kissing his or her grandchild or great-
207	grandchild. Gifts, cards, and letters from the grandparent or
208	great-grandparentand other family members shall not be denied
209	to a child who has been adjudicated a dependent child.
210	(3) Any attempt by a grandparent or great-grandparentto
211	facilitate a meeting between the child who has been adjudicated
212	a dependent child and the child's parent or legal custodian, or
213	any other person in violation of a court order shall
214	automatically terminate future visitation rights of the
215	grandparent or great-grandparent.
216	(4) When the child has been returned to the physical
217	custody of his or her parent, the visitation rights granted
218	pursuant to this section shall terminate.
219	(5) The termination of parental rights does not affect the
220	rights of grandparents or great-grandparentsunless the court
221	finds that such visitation is not in the best interest of the
222	child or that such visitation would interfere with the goals of
223	permanency planning for the child.
224	(6) In determining whether grandparental or great-
225	grandparentalvisitation is not in the child's best interest,
226	consideration may be given to the finding of guilt, regardless
227	of adjudication, or entry or plea of guilty or nolo contendere
228	to charges under the following statutes, or similar statutes of
229	other jurisdictions: s. 787.04, relating to removing minors
230	from the state or concealing minors contrary to court order; s.
231	794.011, relating to sexual battery; s. 798.02, relating to lewd
232	and lascivious behavior; chapter 800, relating to lewdness and
233	indecent exposure; or chapter 827, relating to the abuse of
234	children. Consideration may also be given to a report of abuse,
235	abandonment, or neglect under ss. 415.101-415.113 or this
236	chapter and the outcome of the investigation concerning such
237	report.
238	Section 7. Paragraph (a) of subsection (3) of section
239	39.801, Florida Statutes, is amended to read:
240	39.801 Procedures and jurisdiction; notice; service of
241	process.--
242	(3) Before the court may terminate parental rights, in
243	addition to the other requirements set forth in this part, the
244	following requirements must be met:
245	(a) Notice of the date, time, and place of the advisory
246	hearing for the petition to terminate parental rights and a copy
247	of the petition must be personally served upon the following
248	persons, specifically notifying them that a petition has been
249	filed:
250	1. The parents of the child.
251	2. The legal custodians of the child.
252	3. If the parents who would be entitled to notice are dead
253	or unknown, a living relative of the child, unless upon diligent
254	search and inquiry no such relative can be found.
255	4. Any person who has physical custody of the child.
256	5. Any grandparent or great-grandparent entitled to notice
257	ofpriority foradoption under s. 63.0425.
258	6. Any prospective parent who has been identified under s.
259	39.503 or s. 39.803.
260	7. The guardian ad litem for the child or the
261	representative of the guardian ad litem program, if the program
262	has been appointed.
263
264	The document containing the notice to respond or appear must
265	contain, in type at least as large as the type in the balance of
266	the document, the following or substantially similar language:
267	"FAILURE TO PERSONALLY APPEAR AT THIS ADVISORY HEARING
268	CONSTITUTES CONSENT TO THE TERMINATION OF PARENTAL RIGHTS OF
269	THIS CHILD (OR CHILDREN). IF YOU FAIL TO APPEAR ON THE DATE AND
270	TIME SPECIFIED, YOU MAY LOSE ALL LEGAL RIGHTS AS A PARENT TO THE
271	CHILD OR CHILDREN NAMED IN THE PETITION ATTACHED TO THIS
272	NOTICE."
273	Section 8. Paragraph (b) of subsection (2), paragraph (c)
274	of subsection (4), and subsections (6) and (7) of section 61.13,
275	Florida Statutes, are amended to read:
276	61.13 Custody and support of children; visitation rights;
277	power of court in making orders.--
278	(2)
279	(b)1. The court shall determine all matters relating to
280	custody of each minor child of the parties in accordance with
281	the best interests of the child and in accordance with the
282	Uniform Child Custody Jurisdiction and Enforcement Act. It is
283	the public policy of this state to assure that each minor child
284	has frequent and continuing contact with both parents after the
285	parents separate or the marriage of the parties is dissolved and
286	to encourage parents to share the rights and responsibilities,
287	and joys, of childrearing. After considering all relevant facts,
288	the father of the child shall be given the same consideration as
289	the mother in determining the primary residence of a child
290	irrespective of the age or sex of the child.
291	2. The court shall order that the parental responsibility
292	for a minor child be shared by both parents unless the court
293	finds that shared parental responsibility would be detrimental
294	to the child. Evidence that a parent has been convicted of a
295	felony of the third degree or higher involving domestic
296	violence, as defined in s. 741.28 and chapter 775, or meets the
297	criteria of s. 39.806(1)(d), creates a rebuttable presumption of
298	detriment to the child. If the presumption is not rebutted,
299	shared parental responsibility, including visitation, residence
300	of the child, and decisions made regarding the child, may not be
301	granted to the convicted parent. However, the convicted parent
302	is not relieved of any obligation to provide financial support.
303	If the court determines that shared parental responsibility
304	would be detrimental to the child, it may order sole parental
305	responsibility and make such arrangements for visitation as will
306	best protect the child or abused spouse from further harm.
307	Whether or not there is a conviction of any offense of domestic
308	violence or child abuse or the existence of an injunction for
309	protection against domestic violence, the court shall consider
310	evidence of domestic violence or child abuse as evidence of
311	detriment to the child.
312	a. In ordering shared parental responsibility, the court
313	may consider the expressed desires of the parents and may grant
314	to one party the ultimate responsibility over specific aspects
315	of the child's welfare or may divide those responsibilities
316	between the parties based on the best interests of the child.
317	Areas of responsibility may include primary residence,
318	education, medical and dental care, and any other
319	responsibilities that the court finds unique to a particular
320	family.
321	b. The court shall order "sole parental responsibility,
322	with or without visitation rights, to the other parent when it
323	is in the best interests of" the minor child.
324	c. The court may award the grandparents or great-
325	grandparents visitation rights with a minor child pursuant to
326	the criteria set forth in s. 752.011if it is in the child's
327	best interest. Grandparents or great-grandparentshave legal
328	standing to seek judicial enforcement of such an award. This
329	section does not require that grandparents or great-grandparents
330	be made parties toor given notice of dissolution pleadings or
331	proceedings, nor do grandparents have legal standing as
332	"contestants" as defined in s. 61.1306. However, if separate
333	actions under this section and s. 752.011 are pending
334	concurrently, courts are strongly encouraged to consolidate the
335	actions in order to minimize the burden of litigation of
336	visitation rights on the child.A court may not order that a
337	child be kept within the state or jurisdiction of the court
338	solely for the purpose of permitting visitation by the
339	grandparents or great-grandparents.
340	3. Access to records and information pertaining to a minor
341	child, including, but not limited to, medical, dental, and
342	school records, may not be denied to a parent because the parent
343	is not the child's primary residential parent. Full rights under
344	this subparagraph apply to either parent unless a court order
345	specifically revokes these rights, including any restrictions on
346	these rights as provided in a domestic violence injunction. A
347	parent having rights under this subparagraph has the same rights
348	upon request as to form, substance, and manner of access as are
349	available to the other parent of a child, including, without
350	limitation, the right to in-person communication with medical,
351	dental, and education providers.
352	(4)
353	(c) When a custodial parent refuses to honor a
354	noncustodial parent's,or grandparent's, or great-grandparent's
355	visitation rights without proper cause, the court shall, after
356	calculating the amount of visitation improperly denied, award
357	the noncustodial parent,or grandparent, or great-grandparenta
358	sufficient amount of extra visitation to compensate the
359	noncustodial parent,or grandparent, or great-grandparent, which
360	visitation shall be ordered as expeditiously as possible in a
361	manner consistent with the best interests of the child and
362	scheduled in a manner that is convenient for the person deprived
363	of visitation. In ordering any makeup visitation, the court
364	shall schedule such visitation in a manner that is consistent
365	with the best interests of the child or children and that is
366	convenient for the noncustodial parent,or grandparent, or
367	great-grandparent. In addition, the court:
368	1. May order the custodial parent to pay reasonable court
369	costs and attorney's fees incurred by the noncustodial parent,
370	or grandparent, or great-grandparentto enforce their visitation
371	rights or make up improperly denied visitation;
372	2. May order the custodial parent to attend the parenting
373	course approved by the judicial circuit;
374	3. May order the custodial parent to do community service
375	if the order will not interfere with the welfare of the child;
376	4. May order the custodial parent to have the financial
377	burden of promoting frequent and continuing contact when the
378	custodial parent and child reside further than 60 miles from the
379	noncustodial parent;
380	5. May award custody, rotating custody, or primary
381	residence to the noncustodial parent, upon the request of the
382	noncustodial parent, if the award is in the best interests of
383	the child; or
384	6. May impose any other reasonable sanction as a result of
385	noncompliance.
386	(d) A person who violates this subsection may be punished
387	by contempt of court or other remedies as the court deems
388	appropriate.
389	(6) In any proceeding under this section, the court may
390	not deny shared parental responsibility, custody, or visitation
391	rights to a parent,or grandparent, or great-grandparentsolely
392	because that parent,or grandparent, or great-grandparentis or
393	is believed to be infected with human immunodeficiency virus;
394	but the court may condition such rights upon the parent's,or
395	grandparent's, or great-grandparent'sagreement to observe
396	measures approved by the Centers for Disease Control and
397	Prevention of the United States Public Health Service or by the
398	Department of Health for preventing the spread of human
399	immunodeficiency virus to the child.
400	(7) In any case where the child is actually residing with
401	a grandparent in a stable relationship, whether the court has
402	awarded custody to the grandparent or not, the court may
403	recognize the grandparents as having the same standing as
404	parents for evaluating what custody arrangements are in the best
405	interest of the child.
406	Section 9. Subsection (1) of section 63.0425, Florida
407	Statutes, is amended to read:
408	63.0425 Grandparent's or great-grandparent'sright to
409	adopt.--
410	(1) When a child who has lived with a grandparent or
411	great-grandparent for at least 6 months within the 24-month
412	period immediately preceding the filing of a petition for
413	termination of parental rights pending adoptionis placed for
414	adoption, the adoption entity handling the adoption shall
415	provide notice tonotify that grandparent or great-grandparent
416	of the hearing on the petition for termination of parental
417	rights pending adoptionimpending adoption before the petition
418	for adoption is filed. If the grandparent petitions the court to
419	adopt the child, the court shall give first priority for
420	adoption to that grandparent.
421	Section 10. Subsection (2) of section 63.172, Florida
422	Statutes, is amended to read:
423	63.172 Effect of judgment of adoption.--
424	(2) If one or both parents of a child die without the
425	relationship of parent and child having been previously
426	terminated and a spouse of the living parent or a close relative
427	of the child thereafter adopts the child, the child's right of
428	inheritance from or through the deceased parent is unaffected by
429	the adoption and, unless the court orders otherwise, the
430	adoption will not terminate any grandparental or great-
431	grandparentalrights delineated under chapter 752. For purposes
432	of this subsection, a close relative of a child is the child's
433	brother, sister, grandparent, great-grandparent,aunt, or uncle.
434	Section 11. This act shall take effect July 1, 2003.
435