Over the last several years, courts have scrutinized laws that give
grandparents the right to visit with their grandchildren over the
objection of the parents.
Multiple courts have struck down these laws as unconstitutional as
they are written or applied because they infringe on the parents‟
constitutional right to raise their child free from government
Today there are approximately 35 states with valid grandparent visitation statutes. In 1984, the Florida Legislature created ch. 752, F.S., which was
designed to give grandparents the right to petition for visitation with
However, almost all of the substantive provisions in ch. 752, F.S., have been struck down as unconstitutional.
The Legislature has also addressed grandparent visitation rights
over the years in the context of ch. 61, F.S., which governs divorce,
custody, visitation, and support.
Florida Senate on Grandparent Visitation
Based on a review of case law, as well as discussions with
practitioners and legal scholars, it appears that the Florida courts
have enumerated certain factors that are important in constructing a
grandparent visitation statute.
After reviewing these findings, Senate professional staff
recommends that the Legislature weigh the following considerations if it
decides to craft new legislation in this area:
Allow any grandparent to be able to petition for visitation, regardless of the parents‟ marital status.
Create a rebuttable presumption that a fit parent acts in the best interests of the child when denying or allowing visitation.
Require the grandparent to submit a verified
petition alleging that the child will suffer demonstrable harm if
visitation is denied.
Require the grandparent to then prove by clear
and convincing evidence that the failure to allow visitation has caused
or is likely to cause demonstrable harm to the child‟s health, safety,
Appoint a guardian ad litem for the child.
Require a professional evaluation of the child pursuant to the Florida Family Law Rules of Procedure.
Enumerate factors that the court must consider
when determining whether a denial of visitation will demonstrably harm
the child‟s health, safety, or welfare.
Place a limit on the number of times a
grandparent can file an original action for visitation, absent a real,
substantial, and unanticipated change of circumstances.
The report on third-party visitation being prepared by the Family Law
Section of The Florida Bar may also provide helpful information for
This report has been available since the 2009 Regular Session.
If the Legislature wishes to wait for this report to be
released before addressing grandparent legislation, then, at a minimum,
Senate professional staff recommends that in the upcoming Regular
Session the Legislature consider repealing the provisions of ch. 752,
F.S., that have been held unconstitutional (e.g., ss. 752.01 and 752.07,
F.S.) in order to avoid confusion and so people do not mistakenly rely
Florida Grandparent Visitation Law
The 2008 Florida Statutes
GRANDPARENTAL VISITATION RIGHTS
752.01 Action by grandparent for right of visitation; when petition shall be granted.--
(1) The court shall, upon petition filed by a grandparent of a
minor child, award reasonable rights of visitation to the grandparent
with respect to the child when it is in the best interest of the minor
(a) The marriage of the parents of the child has been dissolved;
(b) A parent of the child has deserted the child; or
(c) The minor child was born out of wedlock and not later
determined to be a child born within wedlock as provided in s. 742.091.
(2) In determining the best interest of the minor child, the court shall consider:
(a) The willingness of the grandparent or grandparents to
encourage a close relationship between the child and the parent or
(b) The length and quality of the prior relationship between the child and the grandparent or grandparents.
(c) The preference of the child if the child is determined to be of sufficient maturity to express a preference.
(d) The mental and physical health of the child.
(e) The mental and physical health of the grandparent or grandparents.
(f) Such other factors as are necessary in the particular circumstances.
(3) This act does not provide for grandparent visitation rights
for children placed for adoption under chapter 63 except as provided in
s. 752.07 with respect to adoption by a stepparent.
History.--s. 1, ch. 84-64; s. 70, ch. 87-226; s. 6, ch. 90-273; s. 1, ch. 93-279; s. 2, ch. 2000-156.