Florida Senate - 2013                              CS for SB 384
       By the Committee on Children, Families, and Elder Affairs; and
       Senator Abruzzo
       586-03365-13                                           2013384c1
    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; requiring a preliminary
    6         hearing; providing for the payment of attorney fees
    7         and costs by a petitioner who fails to make a prima
    8         facie showing of harm; authorizing grandparent
    9         visitation if the court makes specified findings;
   10         providing factors for court consideration; providing
   11         for application of the Uniform Child Custody
   12         Jurisdiction and Enforcement Act; encouraging the
   13         consolidation of certain concurrent actions; providing
   14         for modification of an order awarding grandparent
   15         visitation; limiting the frequency of actions seeking
   16         visitation; limiting application to a minor child
   17         placed for adoption; providing for venue; amending s.
   18         752.015, F.S.; conforming references; creating s.
   19         752.071, F.S.; providing conditions under which a
   20         court may terminate a grandparent visitation order
   21         upon adoption of a minor child by a stepparent or
   22         close relative; amending s. 39.01, F.S.; revising the
   23         definition of “next of kin” to include great
   24         grandparents for purposes of various proceedings
   25         relating to children; amending s. 39.509, F.S.;
   26         providing for visitation rights of great-grandparents;
   27         amending ss. 39.801 and 63.0425, F.S.; providing for a
   28         great-grandparent’s right to notice of adoption;
   29         amending s. 63.172, F.S.; conforming provisions;
   30         repealing s. 752.01, F.S., relating to actions by a
   31         grandparent for visitation rights; repealing s.
   32         752.07, F.S., relating to the effect of adoption of a
   33         child by a stepparent on grandparent visitation
   34         rights; providing an effective date.
   36  Be It Enacted by the Legislature of the State of Florida:
   38         Section 1. Section 752.011, Florida Statutes, is created to
   39  read:
   40         752.011 Petition for grandparent visitation of a minor
   41  child.—A grandparent of a minor child whose parent or parents
   42  are deceased, missing, or in a permanent vegetative state may
   43  petition the court for court-ordered visitation with the
   44  grandchild under this section.
   45         (1) Upon the filing of a petition by a grandparent for
   46  visitation the court shall hold a preliminary hearing to
   47  determine whether the petitioner has made a prima facie showing
   48  of parental unfitness or significant harm to the child. Absent
   49  such a showing, the court shall dismiss the petition and shall
   50  award reasonable attorney fees and costs to be paid by the
   51  petitioner to the respondent.
   52         (2) If the court finds that there is prima facie evidence
   53  that a parent is unfit or that there is a danger of significant
   54  harm to the child, the court shall proceed toward a final
   55  hearing, may appoint a guardian ad litem, and shall order the
   56  matter to family mediation as provided in s. 752.015.
   57         (3) After conducting a final hearing on the issue of
   58  visitation, the court may award reasonable visitation to the
   59  grandparent with respect to the minor child if the court finds
   60  by clear and convincing evidence that a parent is unfit or that
   61  there is a danger of significant harm to the child, that
   62  visitation is in the best interest of the minor child, and that
   63  the visitation will not materially harm the parent-child
   64  relationship.
   65         (4) In assessing the best interest of the child under
   66  subsection (3), the court shall consider the totality of the
   67  circumstances affecting the mental and emotional well-being of
   68  the minor child, including:
   69         (a) The love, affection, and other emotional ties existing
   70  between the minor child and the grandparent, including those
   71  resulting from the relationship that had been previously allowed
   72  by the child’s parent.
   73         (b) The length and quality of the previous relationship
   74  between the minor child and the grandparent, including the
   75  extent to which the grandparent was involved in providing
   76  regular care and support for the child.
   77         (c) Whether the grandparent established ongoing personal
   78  contact with the minor child before the death of the parent.
   79         (d) The reasons that the surviving parent made the decision
   80  to end contact or visitation between the minor child and the
   81  grandparent.
   82         (e) Whether there has been demonstrable significant mental
   83  or emotional harm to the minor child as a result of disruption
   84  in the family unit, for which the child derived support and
   85  stability from the grandparental relationship, and whether the
   86  continuation of that support and stability is likely to prevent
   87  further harm.
   88         (f) The existence or threat to the minor child of mental
   89  injury as defined in s. 39.01.
   90         (g) The present mental, physical, and emotional health of
   91  the minor child.
   92         (h) The present mental, physical, and emotional health of
   93  the grandparent.
   94         (i) The recommendations of the minor child’s guardian ad
   95  litem, if one is appointed.
   96         (j) The results of any psychological evaluation of the
   97  minor child.
   98         (k) The preference of the minor child if the child is
   99  determined to be of sufficient maturity to express a preference.
  100         (l) A written testamentary statement by the deceased parent
  101  regarding visitation with the grandparent. The absence of such a
  102  testamentary statement does not provide evidence that the
  103  deceased parent would have objected to the requested visitation.
  104         (m) Such other factors as the court considers necessary in
  105  making its determination.
  106         (5) In assessing material harm to the parent-child
  107  relationship under subsection (3), the court shall consider the
  108  totality of the circumstances affecting the parent-child
  109  relationship, including:
  110         (a) Whether there have been previous disputes between the
  111  grandparent and the parent over childrearing or other matters
  112  related to the care and upbringing of the minor child.
  113         (b) Whether visitation would materially interfere with or
  114  compromise parental authority.
  115         (c) Whether visitation can be arranged in a manner that
  116  does not materially detract from the parent-child relationship,
  117  including the quantity of time available for enjoyment of the
  118  parent-child relationship and any other consideration related to
  119  disruption of the schedule and routines of the parent and the
  120  minor child.
  121         (d) Whether visitation is being sought for the primary
  122  purpose of continuing or establishing a relationship with the
  123  minor child with the intent that the child benefit from the
  124  relationship.
  125         (e) Whether the requested visitation would expose the minor
  126  child to conduct, moral standards, experiences, or other factors
  127  that are inconsistent with influences provided by the parent.
  128         (f) The nature of the relationship between the parent and
  129  the grandparent.
  130         (g) The reasons that the parent made the decision to end
  131  contact or visitation between the minor child and the
  132  grandparent which was previously allowed by the parent.
  133         (h) The psychological toll of visitation disputes on the
  134  minor child.
  135         (i) Such other factors as the court considers necessary in
  136  making its determination.
  137         (6) Part II of chapter 61, the Uniform Child Custody
  138  Jurisdiction and Enforcement Act, applies to actions brought
  139  under this section.
  140         (7) If separate actions under this section and s. 61.13 are
  141  pending concurrently, the courts are strongly encouraged to
  142  consolidate the actions in order to minimize the burden of
  143  litigation of grandparent visitation on the minor child and the
  144  other parties.
  145         (8) An order for grandparent visitation may be modified
  146  upon a showing by the person petitioning for modification that a
  147  substantial change in circumstances has occurred and that
  148  modification of visitation is in the best interest of the minor
  149  child.
  150         (9) An original action requesting visitation under this
  151  section may be filed by a grandparent only once during any 2
  152  year period, except on good cause shown that the minor child is
  153  suffering or threatened with suffering demonstrable significant
  154  mental or emotional harm caused by a parental decision to deny
  155  visitation between a minor child and the grandparent, which was
  156  not known to the grandparent at the time of filing an earlier
  157  action.
  158         (10) This section does not provide for grandparent
  159  visitation with a minor child placed for adoption under chapter
  160  63, except as provided in s. 752.071 with respect to adoption by
  161  a stepparent or close relative.
  162         (11) Venue shall be in the county where the minor child
  163  primarily resides, unless venue is otherwise governed by chapter
  164  39, chapter 61, or chapter 63.
  165         Section 2. Section 752.015, Florida Statutes, is amended to
  166  read:
  167         752.015 Mediation of visitation disputes.—It shall be the
  168  public policy of this state that families resolve differences
  169  over grandparent visitation within the family. It shall be the
  170  further public policy of this state that when families are
  171  unable to resolve differences relating to grandparent visitation
  172  that the family participate in any formal or informal mediation
  173  services that may be available. If When families are unable to
  174  resolve differences relating to grandparent visitation and a
  175  petition is filed pursuant to s. 752.011 s. 752.01, the court
  176  shall, if such services are available in the circuit, refer the
  177  case to family mediation in accordance with the Florida Family
  178  Law Rules of Procedure rules promulgated by the Supreme Court.
  179         Section 3. Section 752.071, Florida Statutes, is created to
  180  read:
  181         752.071 Effect of adoption by stepparent or close
  182  relative.—After the adoption of a minor child by a stepparent or
  183  close relative, the stepparent or close relative may petition
  184  the court to terminate an order granting grandparent visitation
  185  under this chapter which was entered before the adoption. The
  186  court may terminate the order unless the grandparent is able to
  187  show that the criteria of s. 752.011 authorizing the visitation
  188  continue to be satisfied.
  189         Section 4. Subsection (45) of section 39.01, Florida
  190  Statutes, is amended to read:
  191         39.01 Definitions.—When used in this chapter, unless the
  192  context otherwise requires:
  193         (45) “Next of kin” means an adult relative of a child who
  194  is the child’s brother, sister, grandparent, great-grandparent,
  195  aunt, uncle, or first cousin.
  196         Section 5. Section 39.509, Florida Statutes, is amended to
  197  read:
  198         39.509 Grandparents’ and great-grandparents’ Grandparents
  199  rights.—Notwithstanding any other provision of law, a maternal
  200  or paternal grandparent or great-grandparent as well as a
  201  stepgrandparent or step-great-grandparent is entitled to
  202  reasonable visitation with his or her grandchild or great
  203  grandchild who has been adjudicated a dependent child and taken
  204  from the physical custody of the parent unless the court finds
  205  that such visitation is not in the best interest of the child or
  206  that such visitation would interfere with the goals of the case
  207  plan. Reasonable visitation may be unsupervised and, where
  208  appropriate and feasible, may be frequent and continuing. Any
  209  order for visitation or other contact must conform to the
  210  provisions of s. 39.0139.
  211         (1) Grandparent or great-grandparent visitation may take
  212  place in the home of the grandparent or great-grandparent unless
  213  there is a compelling reason for denying such a visitation. The
  214  department’s caseworker shall arrange the visitation to which a
  215  grandparent or great-grandparent is entitled pursuant to this
  216  section. The state shall not charge a fee for any costs
  217  associated with arranging the visitation. However, the
  218  grandparent or great-grandparent shall pay for the child’s cost
  219  of transportation when the visitation is to take place in the
  220  grandparent’s or great-grandparent’s home. The caseworker shall
  221  document the reasons for any decision to restrict a
  222  grandparent’s or great-grandparent’s visitation.
  223         (2) A grandparent or great-grandparent entitled to
  224  visitation pursuant to this section shall not be restricted from
  225  appropriate displays of affection to the child, such as
  226  appropriately hugging or kissing his or her grandchild or great
  227  grandchild. Gifts, cards, and letters from the grandparent or
  228  great-grandparent and other family members shall not be denied
  229  to a child who has been adjudicated a dependent child.
  230         (3) Any attempt by a grandparent or great-grandparent to
  231  facilitate a meeting between the child who has been adjudicated
  232  a dependent child and the child’s parent or legal custodian, or
  233  any other person in violation of a court order shall
  234  automatically terminate future visitation rights of the
  235  grandparent or great-grandparent.
  236         (4) When the child has been returned to the physical
  237  custody of his or her parent, the visitation rights granted
  238  pursuant to this section shall terminate.
  239         (5) The termination of parental rights does not affect the
  240  rights of grandparents or great-grandparents unless the court
  241  finds that such visitation is not in the best interest of the
  242  child or that such visitation would interfere with the goals of
  243  permanency planning for the child.
  244         (6) In determining whether grandparental or great
  245  grandparental visitation is not in the child’s best interest,
  246  consideration may be given to the following:
  247         (a) The finding of guilt, regardless of adjudication, or
  248  entry or plea of guilty or nolo contendere to charges under the
  249  following statutes, or similar statutes of other jurisdictions:
  250  s. 787.04, relating to removing a minor child minors from the
  251  state or concealing a minor child minors contrary to court
  252  order; s. 794.011, relating to sexual battery; s. 798.02,
  253  relating to lewd and lascivious behavior; chapter 800, relating
  254  to lewdness and indecent exposure; s. 826.04, relating to
  255  incest; or chapter 827, relating to the abuse of children.
  256         (b) The designation by a court as a sexual predator as
  257  defined in s. 775.21 or a substantially similar designation
  258  under laws of another jurisdiction.
  259         (c) A report of abuse, abandonment, or neglect under ss.
  260  415.101-415.113 or this chapter and the outcome of the
  261  investigation concerning such report.
  262         Section 6. Paragraph (a) of subsection (3) of section
  263  39.801, Florida Statutes, is amended to read:
  264         39.801 Procedures and jurisdiction; notice; service of
  265  process.—
  266         (3) Before the court may terminate parental rights, in
  267  addition to the other requirements set forth in this part, the
  268  following requirements must be met:
  269         (a) Notice of the date, time, and place of the advisory
  270  hearing for the petition to terminate parental rights and a copy
  271  of the petition must be personally served upon the following
  272  persons, specifically notifying them that a petition has been
  273  filed:
  274         1. The parents of the child.
  275         2. The legal custodians of the child.
  276         3. If the parents who would be entitled to notice are dead
  277  or unknown, a living relative of the child, unless upon diligent
  278  search and inquiry no such relative can be found.
  279         4. Any person who has physical custody of the child.
  280         5. Any grandparent or great-grandparent entitled to
  281  priority for adoption under s. 63.0425.
  282         6. Any prospective parent who has been identified under s.
  283  39.503 or s. 39.803.
  284         7. The guardian ad litem for the child or the
  285  representative of the guardian ad litem program, if the program
  286  has been appointed.
  288  The document containing the notice to respond or appear must
  289  contain, in type at least as large as the type in the balance of
  290  the document, the following or substantially similar language:
  296  NOTICE.”
  297         Section 7. Subsection (1) of section 63.0425, Florida
  298  Statutes, is amended to read:
  299         63.0425 Grandparent’s or great-grandparent’s right to
  300  notice.—
  301         (1) If a child has lived with a grandparent or great
  302  grandparent for at least 6 months within the 24-month period
  303  immediately preceding the filing of a petition for termination
  304  of parental rights pending adoption, the adoption entity shall
  305  provide notice to that grandparent or great-grandparent of the
  306  hearing on the petition.
  307         Section 8. Subsection (2) of section 63.172, Florida
  308  Statutes, is amended to read:
  309         63.172 Effect of judgment of adoption.—
  310         (2) If one or both parents of a child die without the
  311  relationship of parent and child having been previously
  312  terminated and a spouse of the living parent or a close relative
  313  of the child thereafter adopts the child, the child’s right of
  314  inheritance from or through the deceased parent is unaffected by
  315  the adoption and, unless the court orders otherwise, the
  316  adoption does will not terminate any grandparental or great
  317  grandparental rights delineated under chapter 752. For purposes
  318  of this subsection, a close relative of a child is the child’s
  319  brother, sister, grandparent, great-grandparent, aunt, or uncle.
  320         Section 9. Sections 752.01 and 752.07, Florida Statutes,
  321  are repealed.
  322         Section 10. This act shall take effect July 1, 2013.