Florida Senate - 2013                                     SB 384
       By Senator Abruzzo
       25-00290-13                                            2013384__
    1                        A bill to be entitled                      
    2         An act relating to grandparent visitation rights;
    3         creating s. 752.011, F.S.; authorizing the grandparent
    4         of a minor child to petition a court for visitation
    5         under certain circumstances; providing a rebuttable
    6         presumption in favor of the minor child’s parent;
    7         requiring a preliminary hearing on harm to the minor
    8         child resulting from denial of visitation; providing
    9         for the payment of attorney fees and costs by a
   10         petitioner who fails to make a prima facie showing of
   11         harm; authorizing appointment of a guardian ad litem
   12         and mediation after a prima facie showing of harm;
   13         providing for a psychological evaluation of the minor
   14         child if mediation fails; authorizing grandparent
   15         visitation if the court makes specified findings;
   16         requiring clear and convincing evidence of
   17         demonstrable significant mental or emotional harm to
   18         the minor child resulting from a denial of visitation;
   19         prohibiting grandparent visitation that materially
   20         harms the parent-child relationship; providing factors
   21         for court consideration in determining whether there
   22         is harm to the minor child or to the parent-child
   23         relationship; providing for application of the Uniform
   24         Child Custody Jurisdiction and Enforcement Act;
   25         encouraging the consolidation of certain concurrent
   26         actions; providing for modification of an order
   27         awarding grandparent visitation; limiting the
   28         frequency of actions seeking visitation; limiting
   29         application to a minor child placed for adoption;
   30         providing for application of sanctions for unsupported
   31         claims or defenses; providing for venue; amending s.
   32         752.015, F.S.; conforming references; creating s.
   33         752.071, F.S.; providing conditions under which a
   34         court may terminate a grandparent visitation order
   35         upon adoption of a minor child by a stepparent or
   36         close relative; amending s. 39.01, F.S.; revising the
   37         definition of “next of kin” to include great
   38         grandparents for purposes of various proceedings
   39         relating to children; amending s. 39.509, F.S.;
   40         providing for visitation rights of great-grandparents;
   41         amending ss. 39.801 and 63.0425, F.S.; providing for a
   42         great-grandparent’s right to notice of adoption;
   43         amending s. 63.172, F.S.; conforming provisions;
   44         repealing s. 752.01, F.S., relating to actions by a
   45         grandparent for visitation rights; repealing s.
   46         752.07, F.S., relating to the effect of adoption of a
   47         child by a stepparent on grandparent visitation
   48         rights; providing an effective date.
   50  Be It Enacted by the Legislature of the State of Florida:
   52         Section 1. Section 752.011, Florida Statutes, is created to
   53  read:
   54         752.011 Petition for grandparent visitation of a minor
   55  child.—
   56         (1) A grandparent of a minor child may petition the court
   57  for visitation with the child if the parent of the child has
   58  denied such visitation with the grandparent.
   59         (2) In evaluating the petition for visitation, the court
   60  shall establish a rebuttable presumption that a parent’s
   61  decision to deny a grandparent reasonable visitation with the
   62  minor child is in the child’s best interest and shall accord
   63  special weight to the parent’s decision.
   64         (3) Upon the filing of a petition by a grandparent for
   65  visitation, the court shall hold a preliminary hearing to
   66  determine whether the petitioner has made a prima facie showing
   67  that the minor child is suffering or is threatened with
   68  suffering demonstrable significant mental or emotional harm due
   69  to the parental decision not to allow visitation with the
   70  grandparent. Absent such a showing, the court shall dismiss the
   71  petition and shall award reasonable attorney fees and costs to
   72  be paid by the petitioner to the respondent.
   73         (4) If the court finds that there is prima facie evidence
   74  that the minor child is suffering or is threatened with
   75  suffering demonstrable significant mental or emotional harm due
   76  to the parental decision not to allow visitation with the
   77  grandparent, the court may appoint a guardian ad litem and shall
   78  order the matter to family mediation as provided in s. 752.015.
   79         (5) If mediation fails to yield a resolution, the court
   80  shall order a psychological evaluation of the minor child
   81  pursuant to the Florida Family Law Rules of Procedure, absent
   82  the availability of comparable evidence of the findings expected
   83  from such an evaluation.
   84         (6) After conducting a hearing on the issue of visitation,
   85  the court may award reasonable visitation to the grandparent
   86  with respect to the minor child if the court finds that:
   87         (a) There is clear and convincing evidence that the minor
   88  child is suffering or is threatened with suffering demonstrable
   89  significant mental or emotional harm as a result of a parental
   90  decision not to allow visitation with the grandparent and that
   91  visitation with the grandparent will alleviate or mitigate the
   92  harm.
   93         (b) The visitation will not materially harm the parent
   94  child relationship.
   95         (7) In assessing demonstrable significant mental or
   96  emotional harm under paragraph (6)(a), the court shall consider
   97  the totality of the circumstances affecting the mental and
   98  emotional well-being of the minor child, including:
   99         (a) The love, affection, and other emotional ties existing
  100  between the minor child and the grandparent, including those
  101  resulting from the relationship that had been previously allowed
  102  by the child’s parent.
  103         (b) The length and quality of the previous relationship
  104  between the minor child and the grandparent, including the
  105  extent to which the grandparent was involved in providing
  106  regular care and support for the child.
  107         (c) Whether the grandparent established or attempted to
  108  establish ongoing personal contact with the minor child.
  109         (d) The reasons that the parent made the decision to end
  110  contact or visitation between the minor child and the
  111  grandparent which had been previously allowed by the parent.
  112         (e) Whether there has been demonstrable significant mental
  113  or emotional harm to the minor child as a result of disruption
  114  in the family unit, for which the child derived support and
  115  stability from the grandparental relationship, and whether the
  116  continuation of that support and stability is likely to prevent
  117  further harm.
  118         (f) The existence or threat to the minor child of mental
  119  injury as defined in s. 39.01.
  120         (g) The present mental, physical, and emotional health of
  121  the minor child.
  122         (h) The present mental, physical, and emotional health of
  123  the grandparent.
  124         (i) The recommendations of the minor child’s guardian ad
  125  litem, if one is appointed.
  126         (j) The results of the psychological evaluation of the
  127  minor child ordered pursuant to subsection (5).
  128         (k) The preference of the minor child if the child is
  129  determined to be of sufficient maturity to express a preference.
  130         (l) If a parent is deceased, any written testamentary
  131  statement by the deceased parent requesting that visitation with
  132  the grandparent be granted or stating a belief that such
  133  visitation would reduce or mitigate demonstrable significant
  134  mental or emotional harm to the minor child resulting from the
  135  parent’s death. The absence of such a testamentary statement
  136  does not provide evidence that the deceased parent would have
  137  objected to the requested visitation.
  138         (m) Whether the parents of the minor child disagree on
  139  whether to allow or the extent of grandparent visitation.
  140         (n) Such other factors as the court considers necessary in
  141  making its determination.
  142         (8) In assessing material harm to the parent-child
  143  relationship under paragraph (6)(b), the court shall consider
  144  the totality of the circumstances affecting the parent-child
  145  relationship, including:
  146         (a) Whether there have been previous disputes between the
  147  grandparent and the parent or parents over childrearing or other
  148  matters related to the care and upbringing of the minor child.
  149         (b) Whether visitation would materially interfere with or
  150  compromise parental authority.
  151         (c) Whether visitation can be arranged in a manner that
  152  does not materially detract from the parent-child relationship,
  153  including the quantity of time available for enjoyment of the
  154  parent-child relationship, and any other consideration related
  155  to disruption of the schedule and routines of the parent and the
  156  minor child.
  157         (d) Whether visitation is being sought for the primary
  158  purpose of continuing or establishing a relationship with the
  159  minor child with the intent that the child benefit from the
  160  relationship.
  161         (e) Whether the requested visitation would expose the minor
  162  child to conduct, moral standards, experiences, or other factors
  163  that are inconsistent with influences provided by the parent.
  164         (f) The nature of the relationship between the parent and
  165  the grandparent.
  166         (g) The reasons that the parent made the decision to end
  167  contact or visitation between the minor child and the
  168  grandparent which was previously allowed by the parent.
  169         (h) The psychological toll of visitation disputes on the
  170  minor child.
  171         (i) Such other factors as the court considers necessary in
  172  making its determination.
  173         (9) Part II of chapter 61, the Uniform Child Custody
  174  Jurisdiction and Enforcement Act, applies to actions brought
  175  under this section.
  176         (10) If separate actions under this section and s. 61.13
  177  are pending concurrently, the courts are strongly encouraged to
  178  consolidate the actions in order to minimize the burden of
  179  litigation of grandparent visitation on the minor child and the
  180  other parties.
  181         (11) An order for grandparent visitation may be modified
  182  upon a showing by the person petitioning for modification that a
  183  substantial change in circumstances has occurred and that
  184  modification of visitation is in the best interest of the minor
  185  child.
  186         (12) An original action requesting visitation under this
  187  section may be filed by a grandparent only once during any 2
  188  year period, except on good cause shown that the minor child is
  189  suffering or threatened with suffering demonstrable significant
  190  mental or emotional harm caused by a parental decision to deny
  191  visitation between a minor child and the grandparent, which was
  192  not known to the grandparent at the time of filing an earlier
  193  action.
  194         (13) This section does not provide for grandparent
  195  visitation with a minor child placed for adoption under chapter
  196  63 except as provided in s. 752.071 with respect to adoption by
  197  a stepparent or close relative.
  198         (14) Section 57.105 applies to actions brought under this
  199  chapter.
  200         (15) Venue shall be in the county where the minor child
  201  primarily resides, unless venue is otherwise governed by chapter
  202  39, chapter 61, or chapter 63.
  203         Section 2. Section 752.015, Florida Statutes, is amended to
  204  read:
  205         752.015 Mediation of visitation disputes.—It shall be the
  206  public policy of this state that families resolve differences
  207  over grandparent visitation within the family. It shall be the
  208  further public policy of this state that when families are
  209  unable to resolve differences relating to grandparent visitation
  210  that the family participate in any formal or informal mediation
  211  services that may be available. If When families are unable to
  212  resolve differences relating to grandparent visitation and a
  213  petition is filed pursuant to s. 752.011 s. 752.01, the court
  214  shall, if such services are available in the circuit, refer the
  215  case to family mediation in accordance with the Florida Family
  216  Law Rules of Procedure rules promulgated by the Supreme Court.
  217         Section 3. Section 752.071, Florida Statutes, is created to
  218  read:
  219         752.071 Effect of adoption by stepparent or close
  220  relative.—After the adoption of a minor child by a stepparent or
  221  close relative, the stepparent or close relative may petition
  222  the court to terminate an order granting grandparent visitation
  223  under this chapter which was entered before the adoption. The
  224  court may terminate the order unless the grandparent is able to
  225  show that the criteria of s. 752.011 authorizing the visitation
  226  continue to be satisfied.
  227         Section 4. Subsection (45) of section 39.01, Florida
  228  Statutes, is amended to read:
  229         39.01 Definitions.—When used in this chapter, unless the
  230  context otherwise requires:
  231         (45) “Next of kin” means an adult relative of a child who
  232  is the child’s brother, sister, grandparent, great-grandparent,
  233  aunt, uncle, or first cousin.
  234         Section 5. Section 39.509, Florida Statutes, is amended to
  235  read:
  236         39.509 Grandparents’ and great-grandparents’ Grandparents
  237  rights.—Notwithstanding any other provision of law, a maternal
  238  or paternal grandparent or great-grandparent as well as a
  239  stepgrandparent or step-great-grandparent is entitled to
  240  reasonable visitation with his or her grandchild or great
  241  grandchild who has been adjudicated a dependent child and taken
  242  from the physical custody of the parent unless the court finds
  243  that such visitation is not in the best interest of the child or
  244  that such visitation would interfere with the goals of the case
  245  plan. Reasonable visitation may be unsupervised and, where
  246  appropriate and feasible, may be frequent and continuing. Any
  247  order for visitation or other contact must conform to the
  248  provisions of s. 39.0139.
  249         (1) Grandparent or great-grandparent visitation may take
  250  place in the home of the grandparent or great-grandparent unless
  251  there is a compelling reason for denying such a visitation. The
  252  department’s caseworker shall arrange the visitation to which a
  253  grandparent or great-grandparent is entitled pursuant to this
  254  section. The state shall not charge a fee for any costs
  255  associated with arranging the visitation. However, the
  256  grandparent or great-grandparent shall pay for the child’s cost
  257  of transportation when the visitation is to take place in the
  258  grandparent’s or great-grandparent’s home. The caseworker shall
  259  document the reasons for any decision to restrict a
  260  grandparent’s or great-grandparent’s visitation.
  261         (2) A grandparent or great-grandparent entitled to
  262  visitation pursuant to this section shall not be restricted from
  263  appropriate displays of affection to the child, such as
  264  appropriately hugging or kissing his or her grandchild or great
  265  grandchild. Gifts, cards, and letters from the grandparent or
  266  great-grandparent and other family members shall not be denied
  267  to a child who has been adjudicated a dependent child.
  268         (3) Any attempt by a grandparent or great-grandparent to
  269  facilitate a meeting between the child who has been adjudicated
  270  a dependent child and the child’s parent or legal custodian, or
  271  any other person in violation of a court order shall
  272  automatically terminate future visitation rights of the
  273  grandparent or great-grandparent.
  274         (4) When the child has been returned to the physical
  275  custody of his or her parent, the visitation rights granted
  276  pursuant to this section shall terminate.
  277         (5) The termination of parental rights does not affect the
  278  rights of grandparents or great-grandparents unless the court
  279  finds that such visitation is not in the best interest of the
  280  child or that such visitation would interfere with the goals of
  281  permanency planning for the child.
  282         (6) In determining whether grandparental or great
  283  grandparental visitation is not in the child’s best interest,
  284  consideration may be given to the following:
  285         (a) The finding of guilt, regardless of adjudication, or
  286  entry or plea of guilty or nolo contendere to charges under the
  287  following statutes, or similar statutes of other jurisdictions:
  288  s. 787.04, relating to removing a minor child minors from the
  289  state or concealing a minor child minors contrary to court
  290  order; s. 794.011, relating to sexual battery; s. 798.02,
  291  relating to lewd and lascivious behavior; chapter 800, relating
  292  to lewdness and indecent exposure; s. 826.04, relating to
  293  incest; or chapter 827, relating to the abuse of children.
  294         (b) The designation by a court as a sexual predator as
  295  defined in s. 775.21 or a substantially similar designation
  296  under laws of another jurisdiction.
  297         (c) A report of abuse, abandonment, or neglect under ss.
  298  415.101-415.113 or this chapter and the outcome of the
  299  investigation concerning such report.
  300         Section 6. Paragraph (a) of subsection (3) of section
  301  39.801, Florida Statutes, is amended to read:
  302         39.801 Procedures and jurisdiction; notice; service of
  303  process.—
  304         (3) Before the court may terminate parental rights, in
  305  addition to the other requirements set forth in this part, the
  306  following requirements must be met:
  307         (a) Notice of the date, time, and place of the advisory
  308  hearing for the petition to terminate parental rights and a copy
  309  of the petition must be personally served upon the following
  310  persons, specifically notifying them that a petition has been
  311  filed:
  312         1. The parents of the child.
  313         2. The legal custodians of the child.
  314         3. If the parents who would be entitled to notice are dead
  315  or unknown, a living relative of the child, unless upon diligent
  316  search and inquiry no such relative can be found.
  317         4. Any person who has physical custody of the child.
  318         5. Any grandparent or great-grandparent entitled to
  319  priority for adoption under s. 63.0425.
  320         6. Any prospective parent who has been identified under s.
  321  39.503 or s. 39.803.
  322         7. The guardian ad litem for the child or the
  323  representative of the guardian ad litem program, if the program
  324  has been appointed.
  326  The document containing the notice to respond or appear must
  327  contain, in type at least as large as the type in the balance of
  328  the document, the following or substantially similar language:
  334  NOTICE.”
  335         Section 7. Subsection (1) of section 63.0425, Florida
  336  Statutes, is amended to read:
  337         63.0425 Grandparent’s or great-grandparent’s right to
  338  notice.—
  339         (1) If a child has lived with a grandparent or great
  340  grandparent for at least 6 months within the 24-month period
  341  immediately preceding the filing of a petition for termination
  342  of parental rights pending adoption, the adoption entity shall
  343  provide notice to that grandparent or great-grandparent of the
  344  hearing on the petition.
  345         Section 8. Subsection (2) of section 63.172, Florida
  346  Statutes, is amended to read:
  347         63.172 Effect of judgment of adoption.—
  348         (2) If one or both parents of a child die without the
  349  relationship of parent and child having been previously
  350  terminated and a spouse of the living parent or a close relative
  351  of the child thereafter adopts the child, the child’s right of
  352  inheritance from or through the deceased parent is unaffected by
  353  the adoption and, unless the court orders otherwise, the
  354  adoption does will not terminate any grandparental or great
  355  grandparental rights delineated under chapter 752. For purposes
  356  of this subsection, a close relative of a child is the child’s
  357  brother, sister, grandparent, great-grandparent, aunt, or uncle.
  358         Section 9. Sections 752.01 and 752.07, Florida Statutes,
  359  are repealed.
  360         Section 10. This act shall take effect July 1, 2013.