How Do Grandparents Factor into Divorce?
Grandparents play a special role in children’s lives, and often provide a gentle guidance and adoration that parents cannot due to other demands and priorities. When parents divorce, grandparents are among the most closely affected by this decision outside the central family unit, and may have concerns that access to their grandchildren may be limited, especially if there is a high amount of conflict between the couple. For legal purposes, only natural parents, adoptive parents, and guardians have rights to demand time with their children. The law tries to give parents the greatest control in deciding who may see their children, and other adults, no matter how closely tied, usually have no mechanism to ask a court to order contact. Grandparents, though, are given special, but quite limited, recognition in Florida, and are permitted to sue for visitation under certain circumstances. While difficult, most grandparents would try to accept a former son- or daughter-in-law restricting or prohibiting contact with their grandchild, but some in law enforcement believe the in-laws of murdered Florida State University law professor Daniel Markel orchestrated a murder-for-hire scheme when access to their grandchildren was restricted. A discussion of when grandparents may petition for visitation rights, and the process for doing so, will follow below.
When a Grandparent Can Petition for Visitation
Florida has one of the more restrictive systems in the country for granting grandparent visitation rights due to the high emphasis the state puts on the privacy of its citizens. Consequently, obtaining visitation rights is extremely difficult, and requires representation by an experienced family law attorney to have a reasonable chance at success. Per Florida law, grandparent visitation petitions will only be considered if one of the following set of circumstances exists:
- both parents are deceased, missing, or in a persistent vegetative state; or
- one parent is deceased, missing, or in a persistent vegetative state, and the other parent was convicted of a felony or offense involving violence that presents a substantial threat to the child’s health or welfare.
A parent is considered missing after his/her whereabouts are unknown for at least 90 days, and was not located despite a diligent search. To satisfy the second circumstance, the petitioning grandparent must show the available parent is unfit or poses a substantial harm to the child.
Assuming the minimum criteria exists to start the process, the first step requires the court to review preliminary evidence at a hearing to establish whether parental unfitness or threat of harm to the child is present. If there is insufficient evidence to meet this burden, the petitioning grandparents must pay the parent’s attorney’s fees. Contrarily, if the petition is allowed to go forward, the parties must then enter mediation to resolve the disagreement. Only after a failed mediation will the court make a final decision, and in addition to the threshold criteria, must also find:
- a parent is unfit or presents a substantial harm;
- visitation is the best interests of the child; and
- visitation will not substantially damage the parent-child relationship.
When evaluating the best interests of the child and the potential harm to the parent-child relationship, the court must consider a long list of factors that generally analyze the nature of the grandparent/grandchild relationship, harm caused by restricting access, and why contact was ended. Importantly, grandparent visitation petitions may only be filed once during any two year period (absent a narrow exception for new evidence of demonstrable harm), and is subject to modification or termination if a substantial change in circumstance is demonstrated by the parent.
Contact an Orlando Divorce Lawyer
Divorce prompts changes in the lives of many people, and some of these changes may not be to everyone’s liking. If you are a grandparent struggling to maintain contact with your grandchild, talk to the knowledgeable attorneys at Donna Hung Law Group to evaluate your case. We may be able to help resolve the disagreement outside of court, and offer representation in litigation depending upon the circumstances. Contact us at (407) 999-0099 for a consultation.