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 interference.
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 their grandchildren.
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.
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:
The report on third-party visitation being prepared by the Family Law Section of The Florida Bar may also provide helpful information for crafting legislation.
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
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 child if:
(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 parents.
(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.
Download the Florida Senate's Grandparent Visitation Rights Report.
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