Grandparents Rights in Florida

By DeLand Attorney Richard “Jake” Jackson

Increasing numbers of parents in Florida are unable or unwilling to adequately care for their children due to substance abuse issues, mental health issues, incarceration, irresponsible lifestyles or circumstances beyond their control.  In many cases the children are residing with grandparents or other relatives who do not have legal custody or any court-enforceable rights with regard to the children.  In other cases, the children continue to live in an environment in which their health and safety is at risk.  Grandparents and other concerned relatives are often given the erroneous advice that “Grandparents have no rights in Florida.”  However, the fact is that under Florida law there are several legal proceedings available to grandparents or other close relatives to seek protection for, or custody or visitation of, minor children who are at risk.

JUVENILE DEPENDENCY (Under Chapter 39, Florida Statutes)

If a child has been abused, neglected or abandoned, or if a child is at imminent risk of abuse, neglect or abandonment, a Petition For Dependency can be filed in the Juvenile Division of the Circuit Court to seek protection of the child.  In most cases the Petition is filed by the Florida Department of Children and Families (DCF), but any person (including a grandparent) can file the Petition.  In a Juvenile Dependency proceeding, the child can be removed from the custody of the parent(s) and placed with another relative or in Foster Care.  The parents can be required to receive services, such as substance abuse evaluations and treatment, mental health evaluations and treatment, individual counseling, domestic violence counseling, employment assistance, education, and parenting classes.  Grandparents may be awarded visitation rights while the Juvenile Dependency proceeding is pending.  In many cases, grandparents or other relatives may be awarded long-term custody of the child, or they may be allowed to adopt the child.

 TEMPORARY CUSTODY BY RELATIVE (Under Chapter 751, Florida Statutes)

A grandparent or other “extended family member” (such as a great-grandparent, aunt or uncle, brother or sister, or step-parent) may file a Petition For Temporary Custody in the Domestic relations Division of the Circuit Court.  The Petitioner must either have the signed, notarized consent of the child’s legal parents, or the Petitioner must be caring full time for the child in the role of a substitute parent and the child must be presently living with the Petitioner.  If the Petitioner does not have the written, notarized consent of the parents, then the Petition For Temporary Custody must allege specific acts or omissions of the parents that demonstrate that the parents have abused, neglected, or abandoned the child.  If a parent objects to the Petition For Temporary Custody, the Petitioner must prove by clear and convincing evidence that that the parent is unfit to provide the care and control of the child and that the parent has abused, neglected or abandoned the child.  A Court Order granting temporary custody will authorize the Petitioner to consent to medical, dental and psychiatric care for the child; to obtain medical, educational and other records of the child; to enroll the child in school and grant or withhold consent for the child to be tested or placed in special school programs; and to do all other things necessary for the care of the child.  The Court Order granting temporary custody may also grant visitation rights to the parents, and may award child support from the parents to the Petitioner.

In the alternative, if no parent objects, it is possible in some circumstances for the grandparent or other extended family member to obtain “concurrent custody” of the child, in which the Petitioner is awarded custodial rights to care for the child concurrently with the parents without diminishing the custodial rights of the parents.  (With concurrent custody, the parents would be able to obtain physical custody of the child at any time.)

If an Order for temporary custody or for concurrent custody has been entered by the Court, it is possible for a parent to petition the Court at any time to request that the Order be modified or terminated.

ADOPTION (Under Chapter 63, Florida Statutes)

In many cases it is possible for a grandparent or other close relative to adopt a child by filing a Petition For Adoption By Relative in the Domestic Relations Division of the Circuit Court.  Normally the consent of the child’s mother is required unless it can be demonstrated that she has abandoned the child.  In many cases the consent of the child’s father is not required (if he is not married to the mother, is not named on the child’s birth certificate, has not been declared by a Court to be the child’s father, and has not taken sufficient action to establish his relationship to the child; or if he is unknown or cannot be located).  If the father is a person whose consent is required, his consent can be waived by the Court if it is demonstrated by clear and convincing evidence that he has abandoned the child.  The consent of the child is required if the child is 12 years of age or older, unless the Court finds that it is in the child’s best interest to waive the consent.

Florida’s adoption statute also provides that in most cases in which a proceeding is filed by any other person to terminate the parents’ rights for an adoption, notice of that proceeding must be given to any grandparent with whom the child has lived for at least 6 months during the 24-month period prior to filing the petition to terminate parental rights.

The legal effect of an adoption is that the Petitioners become the legal parents of the child, and a new birth certificate is issued for the child naming the Petitioners as the parents.  All parental rights of the biological parents are terminated, so they are not able to come back to court to request custody or visitation rights.

 OTHER PROCEEDINGS

There are other legal proceedings that are available for grandparents or other concerned relatives to use in order to seek help or protection for vulnerable children.  A proceeding for GUARDIANSHIP (Under Chapter 744, Florida Statutes) may be filed in the Probate Division of the Circuit Court to request that a responsible adult other than a parent be given authority to care for a child or to manage the child’s property.

If a parent has mental illness that makes the parent a danger to self or others, a proceeding may be instituted pursuant to the FLORIDA MENTAL HEALTH ACT, commonly referred to as the “BAKER ACT” (Under Chapter 394, Florida Statutes) to require the parent to submit to an examination or treatment for mental illness.

If a parent has a severe substance abuse impairment that makes the parent a danger to self or others, or that impairs the parent’s judgment to the extent that the parent is incapable of making a rational decision regarding treatment, a proceeding may be instituted pursuant to the FLORIDA SUBSTANCE ABUCE SERVICES STATUTE, commonly referred to as the “MARCHMAN ACT” (Under Chapter 397, Florida Statutes) to require the parent to submit to an examination or treatment for substance abuse.

CONCLUSION

Florida’s Courts have ruled that the Florida Constitution’s Right To Privacy clause protects Florida parents from undue interference by grandparents or other relatives in Court proceedings.  However, there remain a variety of legal proceedings in Florida that can be employed by grandparents or other relatives to protect minor children and to obtain legal custody or visitation rights.

Child custody and visitation issues are very complex.  As a Family Law attorney, DeLand Lawyer Richard “Jake” Jackson has been serving the legal needs of the Central Florida community since 1985.  Attorney Jackson has represented grandparents and other relatives in the Courts of Volusia, Seminole, Orange, Lake, and Marion Counties and beyond. If you have concerns about a vulnerable child in Florida, call for an appointment at (386) 738-1111.  Office in historic DeLand, Florida.