Florida Senate - 2015 SB 368
By Senator Abruzzo
25-00324-15 2015368__
1 A bill to be entitled
2 An act relating to the rights of grandparents and
3 great-grandparents; amending s. 39.01, F.S.;
4 redefining the term “next of kin” to include great
5 grandparents; amending s. 39.509, F.S.; providing
6 great-grandparents the same visitation rights as
7 grandparents; amending ss. 39.801 and 63.0425, F.S.;
8 requiring notice to a great-grandparent under certain
9 circumstances; repealing s. 752.01, F.S., relating to
10 actions by a grandparent for visitation rights;
11 creating s. 752.011, F.S.; authorizing the grandparent
12 of a minor child to petition a court for visitation
13 under certain circumstances; requiring a preliminary
14 hearing; providing for the payment of attorney fees
15 and costs by a petitioner who fails to make a prima
16 facie showing of harm; authorizing grandparent
17 visitation after a final hearing if the court makes
18 specified findings; providing factors for court
19 consideration; providing for application of the
20 Uniform Child Custody Jurisdiction and Enforcement
21 Act; encouraging the consolidation of certain
22 concurrent actions; providing for modification of an
23 order awarding grandparent visitation; limiting the
24 frequency of actions seeking visitation; limiting
25 application to a minor child placed for adoption;
26 providing for venue; repealing s. 752.07, F.S.,
27 relating to the effect of adoption of a child by a
28 stepparent on grandparent visitation rights; creating
29 s. 752.071, F.S.; authorizing, after petition, a court
30 to terminate a grandparent visitation order upon
31 adoption of a minor child by a stepparent or close
32 relative; amending ss. 39.6221, 39.6231, 63.087,
33 63.172, and 752.015, F.S.; conforming provisions and
34 cross-references to changes made by the act; providing
35 an effective date.
36
37 Be It Enacted by the Legislature of the State of Florida:
38
39 Section 1. Subsection (45) of section 39.01, Florida
40 Statutes, is amended to read:
41 39.01 Definitions.—When used in this chapter, unless the
42 context otherwise requires:
43 (45) “Next of kin” means an adult relative of a child who
44 is the child’s brother, sister, grandparent, great-grandparent,
45 aunt, uncle, or first cousin.
46 Section 2. Section 39.509, Florida Statutes, is amended to
47 read:
48 39.509 Visitation rights of grandparents and great
49 grandparents Grandparents rights.—Notwithstanding any other
50 provision of law, a maternal or paternal grandparent or great
51 grandparent, as well as a step-grandparent or step-great
52 grandparent, stepgrandparent is entitled to reasonable
53 visitation with his or her grandchild or great-grandchild who
54 has been adjudicated a dependent child and taken from the
55 physical custody of the parent unless the court finds that such
56 visitation is not in the best interest of the child or that such
57 visitation would interfere with the goals of the case plan.
58 Reasonable visitation may be unsupervised and, where appropriate
59 and feasible, may be frequent and continuing. An Any order for
60 visitation or other contact must conform to the provisions of s.
61 39.0139.
62 (1) Grandparent or great-grandparent visitation may take
63 place in the home of the grandparent or great-grandparent unless
64 there is a compelling reason for denying such a visitation. The
65 department’s caseworker shall arrange the visitation to which a
66 grandparent or great-grandparent is entitled pursuant to this
67 section. The state may shall not charge a fee for any costs
68 associated with arranging the visitation. However, the
69 grandparent or great-grandparent shall pay for the child’s cost
70 of transportation if when the visitation is to take place in the
71 grandparent’s or great-grandparent’s home. The caseworker shall
72 document the reasons for any decision to restrict a
73 grandparent’s or great-grandparent’s visitation.
74 (2) A grandparent or great-grandparent entitled to
75 visitation pursuant to this section may shall not be restricted
76 from appropriate displays of affection to the child, such as
77 appropriately hugging or kissing his or her grandchild or great
78 grandchild. Gifts, cards, and letters from the grandparent or
79 great-grandparent and other family members may shall not be
80 denied to a child who has been adjudicated a dependent child.
81 (3) An Any attempt by a grandparent or great-grandparent to
82 facilitate a meeting between the child who has been adjudicated
83 a dependent child and the child’s parent or legal custodian, or
84 any other person in violation of a court order shall
85 automatically terminate future visitation rights of the
86 grandparent or great-grandparent.
87 (4) When the child has been returned to the physical
88 custody of his or her parent, the visitation rights granted
89 pursuant to this section shall terminate.
90 (5) The termination of parental rights does not affect the
91 rights of grandparents or great-grandparents unless the court
92 finds that such visitation is not in the best interest of the
93 child or that such visitation would interfere with the goals of
94 permanency planning for the child.
95 (6) In determining whether grandparental or great
96 grandparental visitation is not in the child’s best interest,
97 the court consideration may consider be given to the following:
98 (a) The finding of guilt, regardless of adjudication, or
99 entry or plea of guilty or nolo contendere to charges under the
100 following statutes, or similar statutes of other jurisdictions:
101 1. Section s. 787.04, relating to removing a minor child
102 minors from the state or concealing a minor child minors
103 contrary to court order;
104 2. Section s. 794.011, relating to sexual battery;
105 3. Section s. 798.02, relating to lewd and lascivious
106 behavior;
107 4. Chapter 800, relating to lewdness and indecent exposure;
108 5. Section s. 826.04, relating to incest; or
109 6. Chapter 827, relating to the abuse of children.
110 (b) The designation by a court as a sexual predator as
111 defined in s. 775.21 or a substantially similar designation
112 under laws of another jurisdiction.
113 (c) A report of abuse, abandonment, or neglect under ss.
114 415.101-415.113 or this chapter and the outcome of the
115 investigation concerning such report.
116 Section 3. Paragraph (a) of subsection (3) of section
117 39.801, Florida Statutes, is amended to read:
118 39.801 Procedures and jurisdiction; notice; service of
119 process.—
120 (3) Before the court may terminate parental rights, in
121 addition to the other requirements set forth in this part, the
122 following requirements must be met:
123 (a) Notice of the date, time, and place of the advisory
124 hearing for the petition to terminate parental rights and a copy
125 of the petition must be personally served upon the following
126 persons, specifically notifying them that a petition has been
127 filed:
128 1. The parents of the child.
129 2. The legal custodians of the child.
130 3. If the parents who would be entitled to notice are dead
131 or unknown, a living relative of the child, unless upon diligent
132 search and inquiry no such relative can be found.
133 4. Any person who has physical custody of the child.
134 5. Any grandparent or great-grandparent entitled to
135 priority for adoption under s. 63.0425.
136 6. Any prospective parent who has been identified under s.
137 39.503 or s. 39.803.
138 7. The guardian ad litem for the child or the
139 representative of the guardian ad litem program, if the program
140 has been appointed.
141
142 The document containing the notice to respond or appear must
143 contain, in type at least as large as the type in the balance of
144 the document, the following or substantially similar language:
145
146 “FAILURE TO PERSONALLY APPEAR AT THIS ADVISORY HEARING
147 CONSTITUTES CONSENT TO THE TERMINATION OF PARENTAL RIGHTS OF
148 THIS CHILD (OR CHILDREN). IF YOU FAIL TO APPEAR ON THE DATE AND
149 TIME SPECIFIED, YOU MAY LOSE ALL LEGAL RIGHTS AS A PARENT TO THE
150 CHILD OR CHILDREN NAMED IN THE PETITION ATTACHED TO THIS
151 NOTICE.”
152 Section 4. Section 63.0425, Florida Statutes, is amended to
153 read:
154 63.0425 Grandparent’s or great-grandparent’s right to
155 notice.—
156 (1) If a child has lived with a grandparent or great
157 grandparent for at least 6 months within the 24-month period
158 immediately preceding the filing of a petition for termination
159 of parental rights pending adoption, the adoption entity shall
160 provide notice to that grandparent or great-grandparent of the
161 hearing on the petition.
162 (2) This section does not apply if the placement for
163 adoption is the result of the death of the child’s parent and a
164 different preference is stated in the parent’s will.
165 (3) This section does not apply in stepparent adoptions.
166 (4) This section does not contravene the provisions of s.
167 63.142(4).
168 Section 5. Section 752.01, Florida Statutes, is repealed.
169 Section 6. Section 752.011, Florida Statutes, is created to
170 read:
171 752.011 Petition for grandparent visitation of a minor
172 child.—A grandparent of a minor child whose parents are
173 deceased, missing, or in a permanent vegetative state, or whose
174 one parent is deceased, missing, or in a permanent vegetative
175 state and whose other parent has been convicted of a felony or
176 an offense of violence, may petition the court for court-ordered
177 visitation with the grandchild under this section.
178 (1) Upon the filing of a petition by a grandparent for
179 visitation, the court shall hold a preliminary hearing to
180 determine whether the petitioner has made a prima facie showing
181 of parental unfitness or danger of significant harm to the minor
182 child. Absent such a showing, the court shall dismiss the
183 petition and shall award reasonable attorney fees and costs to
184 be paid by the petitioner to the respondent.
185 (2) If the court finds that there is prima facie evidence
186 that a parent is unfit or that there is a danger of significant
187 harm to the minor child, the court shall proceed toward a final
188 hearing, may appoint a guardian ad litem, and shall order the
189 matter to family mediation as provided in s. 752.015.
190 (3) After conducting a final hearing on the issue of
191 visitation, the court may award reasonable visitation to the
192 grandparent with respect to the minor child if the court finds
193 by clear and convincing evidence that a parent is unfit or that
194 there is a danger of significant harm to the minor child, that
195 visitation is in the best interest of the minor child, and that
196 the visitation will not materially harm the parent-child
197 relationship.
198 (4) In assessing the best interest of the minor child under
199 subsection (3), the court shall consider the totality of the
200 circumstances affecting the mental and emotional well-being of
201 the minor child, including:
202 (a) The love, affection, and other emotional ties existing
203 between the minor child and the grandparent, including those
204 resulting from the relationship that had been previously allowed
205 by the child’s parent.
206 (b) The length and quality of the previous relationship
207 between the minor child and the grandparent, including the
208 extent to which the grandparent was involved in providing
209 regular care and support for the child.
210 (c) Whether the grandparent established ongoing personal
211 contact with the minor child before the death of the parent.
212 (d) The reasons that the surviving parent cited in ending
213 contact or visitation between the minor child and the
214 grandparent.
215 (e) Whether there has been demonstrable significant mental
216 or emotional harm to the minor child as a result of the
217 disruption in the family unit from which the child derived
218 support and stability from the grandparent, and whether the
219 continuation of that support and stability is likely to prevent
220 further harm.
221 (f) The existence or threat to the minor child of mental
222 injury as defined in s. 39.01.
223 (g) The present mental, physical, and emotional health of
224 the minor child.
225 (h) The present mental, physical, and emotional health of
226 the grandparent.
227 (i) The recommendations of the minor child’s guardian ad
228 litem, if one is appointed.
229 (j) The results of any psychological evaluation of the
230 minor child.
231 (k) The preference of the minor child if he or she is
232 determined to be of sufficient maturity to express a preference.
233 (l) A written testamentary statement by the deceased parent
234 regarding visitation with the grandparent. The absence of a
235 testamentary statement is not deemed to provide evidence that
236 the deceased parent would have objected to the requested
237 visitation.
238 (m) Other factors that the court considers necessary in
239 making its determination.
240 (5) In assessing material harm to the parent-child
241 relationship under subsection (3), the court shall consider the
242 totality of the circumstances affecting the parent-child
243 relationship, including:
244 (a) Whether there have been previous disputes between the
245 grandparent and the parent over childrearing or other matters
246 related to the care and upbringing of the minor child.
247 (b) Whether visitation would materially interfere with or
248 compromise parental authority.
249 (c) Whether visitation can be arranged in a manner that
250 does not materially detract from the parent-child relationship,
251 including the quantity of time available for enjoyment of the
252 parent-child relationship and any other consideration related to
253 disruption of the schedule and routines of the parent and the
254 minor child.
255 (d) Whether visitation is being sought for the primary
256 purpose of continuing or establishing a relationship with the
257 minor child with the intent that the child benefit from the
258 relationship.
259 (e) Whether the requested visitation would expose the minor
260 child to conduct, moral standards, experiences, or other factors
261 that are inconsistent with influences provided by the parent.
262 (f) The nature of the relationship between the child’s
263 parent and the grandparent.
264 (g) The reasons that the parent cited in ending contact or
265 visitation between the minor child and the grandparent which was
266 previously allowed by the parent.
267 (h) The psychological toll of visitation disputes on the
268 minor child.
269 (i) Other factors that the court considers necessary in
270 making its determination.
271 (6) Part II of chapter 61, the Uniform Child Custody
272 Jurisdiction and Enforcement Act, applies to actions brought
273 under this section.
274 (7) If separate actions under this section and s. 61.13 are
275 pending concurrently, the courts are strongly encouraged to
276 consolidate the actions in order to minimize the burden of
277 litigation on the minor child and the other parties.
278 (8) An order for grandparent visitation may be modified
279 upon a showing by the person petitioning for modification that a
280 substantial change in circumstances has occurred and that
281 modification of visitation is in the best interest of the minor
282 child.
283 (9) An original action requesting visitation under this
284 section may be filed by a grandparent only once during any 2
285 year period, except on good cause shown that the minor child is
286 suffering, or may suffer, demonstrable significant mental or
287 emotional harm caused by a parental decision to deny visitation
288 between a minor child and the grandparent, which was not known
289 to the grandparent at the time of filing an earlier action.
290 (10) This section does not provide for grandparent
291 visitation with a minor child placed for adoption under chapter
292 63 except as provided in s. 752.071 with respect to adoption by
293 a stepparent or close relative.
294 (11) Venue shall be in the county where the minor child
295 primarily resides, unless venue is otherwise governed by chapter
296 39, chapter 61, or chapter 63.
297 Section 7. Section 752.07, Florida Statutes, is repealed.
298 Section 8. Section 752.071, Florida Statutes, is created to
299 read:
300 752.071 Effect of adoption by stepparent or close
301 relative.—After the adoption of a minor child by a stepparent or
302 close relative, the stepparent or close relative may petition
303 the court to terminate a court order granting grandparent
304 visitation under this chapter which was entered before the
305 adoption. The court may terminate the order unless the
306 grandparent is able to show that the criteria of s. 752.011
307 authorizing the visitation continue to be satisfied.
308 Section 9. Subsection (2) of section 39.6221, Florida
309 Statutes, is amended to read:
310 39.6221 Permanent guardianship of a dependent child.—
311 (2) In its written order establishing a permanent
312 guardianship, the court shall do all of the following:
313 (a) List the circumstances that make or reasons why the
314 child’s parents unfit are not fit to care for the child and make
315 why reunification impossible, referencing is not possible by
316 referring to specific findings of fact made in its order
317 adjudicating the child dependent or by making separate findings
318 of fact.;
319 (b) State the reasons why establishment of a permanent
320 guardianship is being ordered established instead of adoption.;
321 (c) Specify the frequency and nature of visitation or
322 contact between the child and his or her parents.;
323 (d) Specify the frequency and nature of visitation or
324 contact between the child and his or her grandparents or great
325 grandparents, under s. 39.509.;
326 (e) Specify the frequency and nature of visitation or
327 contact between the child and his or her siblings.; and
328 (f) Require that the permanent guardian not return the
329 child to the physical care and custody of the person from whom
330 the child was removed without the approval of the court.
331 Section 10. Subsection (3) of section 39.6231, Florida
332 Statutes, is amended to read:
333 39.6231 Permanent placement with a fit and willing
334 relative.—
335 (3) In its written order placing the child with a fit and
336 willing relative, the court shall do all of the following:
337 (a) List the circumstances that make or reasons why
338 reunification impossible, referencing is not possible by
339 referring to specific findings of fact made in its order
340 adjudicating the child dependent or by making separate findings
341 of fact.;
342 (b) State the reasons why permanent placement with a fit
343 and willing relative is being ordered established instead of
344 adoption.;
345 (c) Specify the frequency and nature of visitation or
346 contact between the child and his or her parents.;
347 (d) Specify the frequency and nature of visitation or
348 contact between the child and his or her grandparents or great
349 grandparents, under s. 39.509.;
350 (e) Specify the frequency and nature of visitation or
351 contact between the child and his or her siblings.; and
352 (f) Require that the relative not return the child to the
353 physical care and custody of the person from whom the child was
354 removed without the approval of the court.
355 Section 11. Paragraph (e) of subsection (4) of section
356 63.087, Florida Statutes, is amended to read:
357 63.087 Proceeding to terminate parental rights pending
358 adoption; general provisions.—
359 (4) PETITION.—
360 (e) The petition must include:
361 1. The minor’s name, gender, date of birth, and place of
362 birth. The petition must contain all names by which the minor is
363 or has been known, excluding the minor’s prospective adoptive
364 name but including the minor’s legal name at the time of the
365 filing of the petition. In the case of an infant child whose
366 adoptive name appears on the original birth certificate, the
367 adoptive name may shall not be included in the petition or, nor
368 shall it be included elsewhere in the termination of parental
369 rights proceeding.
370 2. All information required by the Uniform Child Custody
371 Jurisdiction and Enforcement Act and the Indian Child Welfare
372 Act.
373 3. A statement of the grounds under s. 63.089 upon which
374 the petition is based.
375 4. The name, address, and telephone number of any adoption
376 entity seeking to place the minor for adoption.
377 5. The name, address, and telephone number of the division
378 of the circuit court in which the petition is to be filed.
379 6. A certification of compliance with the requirements of
380 s. 63.0425 regarding notice to grandparents or great
381 grandparents of an impending adoption.
382 Section 12. Subsection (2) of section 63.172, Florida
383 Statutes, is amended to read:
384 63.172 Effect of judgment of adoption.—
385 (2) If one or both parents of a child die without the
386 relationship of parent and child having been previously
387 terminated and a spouse of the living parent or a close relative
388 of the child thereafter adopts the child, the child’s right of
389 inheritance from or through the deceased parent is unaffected by
390 the adoption and, unless the court orders otherwise, the
391 adoption does will not terminate any grandparental or great
392 grandparental rights delineated under chapter 752. For purposes
393 of this subsection, a close relative of a child is the child’s
394 brother, sister, grandparent, great-grandparent, aunt, or uncle.
395 Section 13. Section 752.015, Florida Statutes, is amended
396 to read:
397 752.015 Mediation of visitation disputes.—It is shall be
398 the public policy of this state that families resolve
399 differences over grandparent visitation within the family. It is
400 shall be the further public policy of this state that, when
401 families are unable to resolve differences relating to
402 grandparent visitation, that the family participate in any
403 formal or informal mediation services that may be available. If
404 When families are unable to resolve differences relating to
405 grandparent visitation and a petition is filed pursuant to s.
406 752.011 s. 752.01, the court shall, if such services are
407 available in the circuit, refer the case to family mediation in
408 accordance with the Florida Family Law Rules of Procedure rules
409 promulgated by the Supreme Court.
410 Section 14. This act shall take effect July 1, 2015.