The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Judiciary
BILL: SB 1408
INTRODUCER: Senator Perry
SUBJECT: Grandparent Rights in Dependency Proceedings
DATE: January 21, 2022
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Ravelo Cibula JU Pre-meeting
2. CF
3. RC
I. Summary:
SB 1408 addresses grandparents’ right to participate in dependency proceedings for a grandchild
and to be granted visitation with the grandchild. Specifically, the bill:
Provides that during a dependency action, it is reasonable for a court to grant a grandparent
the right to reasonable visitation with a grandchild in a case where one parent has been held
criminally or civilly liable for the death of the other parent. This presumption would only
apply to the grandparents who are the parents of the dependent child’s deceased parent. A
court may decline to grant these visitation rights if visitation is not in the best interest of the
child.
Allows for a grandparent to file a motion to intervene in a dependency proceeding once the
grandchild has been adjudicated dependent to the state and taken from the physical custody
of the parent. If the parent’s rights have been terminated, the grandparents automatically
become a party to the dependency proceeding unless the court finds that it is not in the best
interest of the child.
The bill takes effect July 1, 2022.
II. Present Situation:
Grandparent Visitation Rights
While parental rights have a well-founded history in U.S. legal system, grandparent’s rights are,
in comparison, a more recent development. Under the common law, grandparents had no
standard legal right to visit their grandchildren. Grandparent visitation rights began to gain
REVISED: BILL: SB 1408 Page 2
prominence in the 1960s, and today every state in the union has some form of grandparent
visitation standard.
1
Colorado, for example, allows grandparents to request visitation rights in child custody cases or
cases concerning the allocation of parental responsibilities, including those cases where a parent
has become deceased.
2
Connecticut authorizes visitation if the grandparent can prove by clear
and convincing evidence that a parent-like relationship exists between the grandparent and the
minor and that denial of such visitation would cause real and significant harm.
3
Georgia
authorizes a court to award visitation rights in to any grandparent who is the parent of a
deceased, incapacitated, or incarcerated
4
parent and specifically provides that parental objection
to such visitation is merely given deference and is not conclusive to the court’s decision.
5
Similar to the national trend with grandparent’s visitation rights, Florida has had a long history
with grandparent visitation legislation. In 1978, the Legislature adopted grandparent visitation
legislation allowing courts to award grandparent visitation rights in dissolution of marriage
proceedings under.
6
This provision, under ch. 61, F.S., was eventually repealed after courts ruled
that grandparents lacked standing to petition in such dissolution of marriage cases.
7
In 1984, the Legislature enacted ch. 752, F.S., titled “Grandparents Visitation Rights,” granting
grandparents standing to petition the court for visitation in certain limited situations.
8
In 1993,
ch. 752, F.S., was further amended to grant grandparents standing to file an action for visitation
rights in situations where the family was still intact, but one or both of the parents “used their
1
Sarah Elizabeth Culley, Troxel v. Granville and its Effect on the Future of Grandparent Visitation Statutes; Legislative
Reform, JOURNAL OF LEGISLATION, Vol. 27:1, at 238, available at
http://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=1151&context=jleg.
2
Colo. Rev. Stat. Ann. § 19-1-117. This sections specifically defines “case concerning the allocation of parental
responsibilities with respect to a child” to include situations where: a parent has died, the marriage of the child’s parents has
been declared invalid or dissolved by a court, or legal custody or parental responsibility has been given or allocated to a party
other than the child’s parent.
3
Conn. Gen. Stat. Ann. § 46b-59. The Supreme Court of Connecticut has held “When an otherwise fit parent denies his or
her child access to an individual who has a parent-like relationship with the child and the parent's decision regarding
visitation will cause the child to suffer real and substantial emotional harm, the State has a compelling interest in protecting
the child's own complementary interest in preserving parent-like relationships that serve the child's welfare by avoiding the
serious and immediate harm to the child that would result from the parent's decision to terminate or impair the child's
relationship with the third party.” Boisvert v. Gavis, 210 A.3d 1, 15 (Conn. 2019)(citing to that child Roth v. Weston, 789
A.2d 431, 445 (Conn. 2002)).
4
Ga. Code Ann. § 19-7-3(d). The Supreme Court of Georgia has ruled, however, that this provision still requires proof by
clear and convincing evidence of actual or threatened harm to the child in order to override an otherwise fit parents objection.
Patten v. Ardis, 816 S.E.2d 633, 637 (Ga. 2018).
5
Ga. Code Ann. § 19-7-3(c)(3) provides that “a parent's decision regarding family member visitation shall be given
deference by the court, the parent's decision shall not be conclusive when failure to provide family member contact would
result in emotional harm to the child. A court may presume that a child who is denied any contact with his or her family
member or who is not provided some minimal opportunity for contact with his or her family member when there is a
preexisting relationship between the child and such family member may suffer emotional injury that is harmful to such child's
health. Such presumption shall be a rebuttable presumption.”
6
Section 61.1306(1), F.S. (1977).
7
Shuler v. Shuler, 371 So. 2d 588, 590 (Fla. 1st DCA 1979).
8
Specifically, s. 752.01(1) (a-c), F.S. (1993) allowed visitation to be awarded if the court determined it to be in the best
interests of the child and one of the following circumstances existed: (1) one or both of the child’s parents were deceased, (2)
the parents are divorced, (3) one parent had deserted the child, or (4) the child was born out of wedlock. BILL: SB 1408 Page 3
parental authority to prohibit a relationship between the minor child and the grandparents.”
9
The
constitutionality of this new subsection was specifically addressed in the 1996 case Beagle v.
Beagle. In Beagle, the Florida Supreme Court ruled that this subsection was facially
unconstitutional and did not satisfy strict scrutiny, holding that under Florida’s privacy clause
10
“the State may not intrude upon the parents’ fundamental right to raise their children except in
cases where the child is threatened with harm”
11
In 2000, the Florida Supreme Court addressed the constitutionality of a 1997 amendment to
ch. 61, F.S., which gave a grandparent the right to intervene in a custody dispute involving their
grandchild if the grandparent could prove (1) that the grandchild was residing with them and (2)
that the grandchild had a stable relationship with them. The court ruled that this amended section
was unconstitutional because it allowed courts to make custody decisions based solely on the
best interest of the child and placed the legal interests of the grandparent as equal to those of the
parents.
12
Finally, the court again addressed grandparent’s rights in 2004, invalidating another
amendment to ch. 61, F.S., which authorized courts in dissolution of marriage proceedings to
award a grandparent reasonable visitation with their grandchild if it was in the children’s best
interest.
13
Currently, statutes relating to grandparents rights to visitation and custody are contained in
chs. 752 and 39, F.S. As previously discussed, ch. 61 has had various different grandparent rights
provisions, but each has been repealed by the Legislature as a result of litigation. Chapter 752,
F.S., titled “Grandparental Visitation Rights” allows for visitation to be awarded when a minor
child’s parents are deceased, missing, or in a permanent vegetative state.
14
If only one parent is
deceased, missing or in a permanent vegetative state, the other parent must have been convicted
of a felony or a violent offense in order for a grandparent to be able to petition for visitation. The
court must also find the grandparent has made a prima facie showing of parental unfitness or
danger of significant harm to the child, and if not, must dismiss the petition.
Dependency Proceedings
A dependent child is a child found by a court to have been abandoned, abused, or neglected by
the child’s parents or other custodians.
15
The Department of Children and Families is responsible
for providing care, safety and protection to the dependent children in its care. One of the most
essential functions of the Department is to achieve permanency, that is, to find a permanent
stable environment for the child to be placed in. Florida courts have a large role in supervising a
9
Section 752.01(1)(e), F.S. (1995).
10
Specifically, Florida’s right to privacy provision states: “Every natural person has the right to be let alone and free from
governmental intrusion into the persons private life except as otherwise provided herein.” FLA. CONST. art. I, s. 23.
11
Beagle v. Beagle, 678 So. 2d 1271, 1276 (Fla. 1996).
12
Richardson v. Richardson, 766 So. 2d 1036, 1039 (Fla. 2000).
13
Sullivan v. Sapp, 866 So. 2d 28 (Fla. 2004). Specifically, s. 61.13(2)(b)2.c., F.S. (2001), provided: “The court may award
the grandparents visitation rights with a minor child if it is in the child’s best interest. Grandparents have legal standing to
seek judicial enforcement of such an award. This section does not require that grandparents be made parties or given notice of
dissolution pleadings or proceedings, nor do grandparents have legal standing as contestants.”
14
Section 752.011, F.S.
15
Section 984.03(12)(a-f), F.S. Additionally, dependent children may be those who are surrendered, voluntarily placed with
adoption agencies, have no legal guardian, or are at a substantial risk of imminent abuse or neglect by the parent or parents of
the custodian. BILL: SB 1408 Page 4
child’s case through the dependency and adoption process. Section 39.812(3), F.S, provides [t]he
court shall retain jurisdiction over any child placed in the custody of the department until the
child is adopted.” Additionally, courts are required to enter any orders the court deems necessary
and suitable to promote and protect the best interests of a child to be adopted.
16
The Legislative Intent of Part IV of ch. 39, F.S., titled “Taking Children into Custody and Shelter
Hearings” specifically provides that:
Every child in out-of-home care be afforded the advantages that can be
gained from the use of family finding to establish caring and long-term or
permanent connections and relationships for children and youth in out-of-
home care, as well as to establish a long-term emotional support network
with family members and other adults who may not be able to take the child
into their home but who want to stay connected with the child.
17
Consistent with the above legislative intent, grandparents often play an important role in the
dependency system. Nationwide, 2.7 million grandparents are raising grandchildren and nearly
half of all children living with their grandchildren are under the age of six.
18
When a child has
been adjudicated dependent and is removed from the physical custody of his or her parents, the
child’s grandparents have the right to unsupervised, reasonable visitation, unless it is not in the
best interest of the child or would interfere with the goals of the case plan.
19
These rights do not
cease even if the court enters an order for termination of the child’s parental rights. Before the
court may terminate parental rights, notice must be provided to certain persons, including any
grandparent entitled to priority for purposes of adoption.
III. Effect of Proposed Changes:
The bill addresses the right of a grandparent to intervene or become a party to a dependency
proceeding for a grandchild and be granted visitation with the grandchild.
First, the bill creates a presumption that a court in a dependency proceeding may award a
grandparent reasonable visitation with a grandchild in cases where the court has found that one
parent has been held criminally or civilly liable for the death of the other parent of the dependent
child. This presumption for visitation rights applies only to a grandparent who is a parent of the
dependent child’s deceased parent. This presumption may be overcome if the court finds that
granting such visitation is not in the best interests of the child. The bill specifically allows for a
grandparents to become a party in a dependency action in order to enforce this provision.
The bill provides that notwithstanding any other law, once a child has been adjudicated
dependent and is taken from the custody of the parent, a grandparent of that child may file a
motion to intervene in the dependency proceeding. If the court has terminated parental rights, a
16
Section 63.022(4)(k), F.S.
17
Section 39.04015(1)(e), F.S.
18
Children Now, A Focus on Grandparents, The 2020 Census is Underway, (Apr. 27, 2020) available at
https://www.childrennow.org/blog/2020-census/.
19
Section 39.509, F.S. BILL: SB 1408 Page 5
grandparent automatically becomes a party to the proceeding unless the court finds that doing so
is not within the best interest of the child.
All three sections of the bill apply to both biological grandparents, as well as step-grandparents.
The bill takes effect July 1, 2022.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
The United States Supreme Court has recognized the fundamental liberty interests
involved in the “care, custody and management” of their children.
20
The Florida Supreme
Court has likewise recognized that decisions related to parenting are fundamental rights
within the Fourteenth Amendment of the United States Constitution and the liberty
interests under the privacy clause of the State Constitution.
21
Any statute that infringes on
these rights is subject to the highest level of judicial scrutiny, and the government must
prove that the statute in question serves a compelling government interest through the
lease intrusive means necessary.
As discussed in the Current Situation section, grandparent visitation legislation has
frequently been litigated and invalidated in this state. Some legislative efforts have been
scrutinized by the courts for interfering with the fundamental rights of parents or for
forcing courts to replace parental decisions with their own judgement. As discussed in the
Florida Supreme Court’s 1996 Beagle decision, the issue with much of the previous
legislation concerned the fact that the legislation allowed for the courts to intervene even
when there was no showing of harm to a child. In comparison to some previous
legislative efforts, however, the bill is much more narrowly tailored, and potentially
distinguishable from the invalidated statutes.
20
Troxel, 530 U.S. 57, 65 (2000).
21
See supra notes 6-7 and accompanying text. BILL: SB 1408 Page 6
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
None.
C. Government Sector Impact:
SB 1408 may encourage permanency and efficiency in cases where grandparents are
willing and able to care for their dependent grandchildren under the circumstances
outlined in the bill.
VI. Technical Deficiencies:
None.
VII. Related Issues:
Although the bill only addresses grandparent visitation rights in relation to dependency
proceedings, the House companion, HB1119, does not require the existence of a dependency
action for a court to award visitation to a grandparent.
Statutes Affected:
This bill substantially amends the following sections of the Florida Statutes: 39.01, 39.509.
VIII. Additional Information:
A. Committee Substitute – Statement of Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
None.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.