Grandparent Rights Visitation - A Review

VON EIFF V. AZICRI: AN IMPORTANT STEP IN THE REFINEMENT OF GRANDPARENT VISITATION ANALYSIS JOAN CATHERINE BOHL When Kelly Von Eiff was three years old her widowed father remarried.1 Her new stepmother adopted her shortly thereafter.2 Friction arose between the Von Eiffs and the Azicris, parents of Kelly’s deceased biological mother.3 The Von Eiffs limited the Azicris’ visitation with Kelly; the Azicris sued.4 The parties to this sad – but hardly unusual – scenario could never have imagined that the resolution of their dispute would help change the face of Florida’s domestic relations law forever, and indeed would leave its mark on grandparent visitation law across the country. In Von Eiff v. Azicri the Florida Supreme Court unanimously struck down a provision of Florida’s grandparent visitation statute that gave grandparents standing to seek court ordered visitation whenever one of the child’s parents had died.5 Finding the provision facially unconstitutional6 under the privacy provisions of the Florida State Constitution, the court held that freedom from governmental intrusion in parental decisions when the child was not threatened with any harm was at “the very core of our constitutional freedoms.”7 Von Eiff is significant, first, because it recognizes a constitutional right to childrearing autonomy independent of the parents’ marital status. It is also the first state Supreme Court decision to focus on the parental right to privacy in a grandparent visitation case where the family is not an intact nuclear unit. Unlike earlier decisions, Von Eiff addresses the parental right at stake directly and in depth rather than as a logical corollary of an earlier opinion8 or a footnote to the articulated rights belonging to intact 1. Von Eiff v. Azicri, 720 So. 2d 510, 511 (Fla. 1998). 2. Id. at 511. 3. Id. at 512. 4. Id. 5. Id. at 510-11 (invalidating FLA. STAT. ch. 752.01(a) on state constitutional grounds). 6. Id. at 517. 7. Id. at 516. 8. See, e.g., Simmons v. Simmons, 900 S.W.2d 682 (Tenn. 1995). This is not meant to minimize the importance of earlier cases or to imply any criticism of the manner in which their opinions are drafted. In Simmons, for example, the grandparents argued that they had standing because the child had been adopted by his stepmother and therefore was not part of a nuclear family. Few statements of any length could have quelled the grandparents’ argument as BOHLMACRO 6/5/2003 11:58 AM 368 ST. THOMAS LAW REVIEW [Vol. 15 families.9 Second, Von Eiff is significant as an example of the evolution of judicial logic and a synthesis of judicial trends. During the two and a half years preceding Von Eiff, questions regarding the constitutionality of grandparent visitation flickered across all districts of the Florida appeals courts,10 involving different factual scenarios11 and reflecting diverse national trends.12 Von Eiff takes these pieces of the puzzle and fashions a logical, comprehensive whole. Finally, Von Eiff has profound practical significance in light of the U.S. Supreme Court’s decision in Troxel v. Granville13 to affirm the Washington State Supreme Court’s invalidation of an open ended grandparent visitation statute. The U.S. Supreme Court expressly declines to address some aspects of the state court’s opinion14 and provides little specific guidance in many of the areas it does address. Although it requires that “special weight” be accorded to a parent’s decision regarding third party visitation,15 for example, it gives no guidance whatsoever regarding how “special weight” is to be assessed or defined. Von Eiff, on the other hand, provides a thoughtful model of how the constitutional standards may be applied and – in its careful elucidation of these standards – suggests why even detailed and restrictive grandparent visitation statutes will fail to pass muster. This article first examines Von Eiff’s legal predecessors: earlier Florida cases that defined the constitutional dimension of familial rights and first attempted to reconcile grandparent visitation with those rights.16 Indeed, the stage was actually set for Von Eiff by two cases that rejected constitutional challenges to the grandparent visitation statute.17 The first used no supporting authority.18 The second equated the rights of single parents with those of married parents prior to dismissing both as unsubstantial.19 By chance the omissions of each of these cases left precisely the logical gap, which it seems was needed to accommodate the decisions supporting parental rights that were to follow. Second, the article explores the Von Eiff opinion itself,20 beginning with its conceptualization of the right at stake. Although the court ultimately found the statutory provision at issue unconstitutional under the state constitution’s guarantee of privacy,21 nothing in its analysis suggests that the court believed the provision could survive a federal constitutional challenge. The article also examines the court’s explication of the harm standard.22 This is perhaps the most significant aspect of the Von Eiff decision, for by specifically articulating what “harm” means in the context of Florida domestic relations law the court eliminated the conceptual blurring of a best interests of the child analysis and a harm analysis. The confusion of these two concepts has infected a decade, at least, of grandparent visitation decisions in Florida23 and elsewhere,24 and, indeed, relegated grandparent visitation law to the intellectually illegitimate fringes of family law itself.25 This section of the article also examines the logic Von Eiff uses to support its conclusion. In this portion of its opinion the court demonstrates the logic of its position both in the broadest context of domestic relations law and in the context of human experience itself. The court notes, for example, that since an adoption “creates the same ‘relationship . . . for all purposes’ between the adopted child and the adoptive parent”26 as would have occurred in a biological family, any attempt to condition government intervention on family status is problematic at best. A final section of the article examines the effect of the Von Eiff decision both on Florida domestic relations law and on the development of grandparent visitation law nationally.27 I. BACKGROUND The fifteen year tug of war between Florida’s grandparent visitation statute and the privacy provision of its constitution can best be understood in the context of pre-existing Florida law. Prior to the enactment of either, Florida law supported familial rights in the strongest possible terms. In Foster v. Sharpe, for example, the court ordered a child who had been entrusted to her aunt for five years returned to the child’s much less prosperous mother.28 Explaining its decision, the court noted that “where a parent has proved he or she is adequately able to care for his or her child in a manner in keeping with the child’s welfare that the legal right of such parent may not be overcome by the fact that another’s offerings may be more copious.”29 A parent’s right “to the custody, care and upbringing” of his or her child, the court observed, is one of the most basic rights of our civilization.30 Similarly, in Franklin v. White Egret Condominium Inc., the concurrence noted “the unique position of homage which the family unit enjoys in our society and . . . the panoply of rights associated with family life.”31 It used this concept of family rights to strike down a restriction that prohibited children under age twelve from living in a condominium complex despite authority to the contrary.32 Indeed, although all American states are beneficiaries of common law tradition and U.S. Supreme Court decisions and therefore must recognize constitutionally protected familial rights, Florida’s respect for those rights appears stronger than some, and its courts a little less willing to dilute those rights with results oriented or politically motivated opinions. Given Florida’s legal climate, it is perhaps not surprising that a freestanding grandparent visitation statute33 was enacted relatively late in comparison to other jurisdictions34 and was received somewhat ambivalently by the courts. In Sragowicz v. Sragowicz, for example, the wife petitioned for a divorce.35 Under Florida’s divorce and dissolution laws the fact of her petition provided the grandparents with standing to seek court ordered visitation,36 and this they promptly did. The wife then withdrew her petition for divorce and successfully sought dismissal of the grandparents’ visitation suit on the grounds that the trial court no longer had jurisdiction to entertain it.37 The wife appealed, but the court of appeals agreed with the trial court.38 Although the grandparents had not filed suit under the freestanding grandparent visitation provisions of section 752,39 the court of appeals invoked it as “[t]he principle enactment regarding grandparents’ visitation rights”40 and used it to conclude that Florida’s statutory scheme regarding grandparent visitation did not contemplate suit when the parents’ marriage was intact.41 The fact that the wife re-filed her petition for divorce a week later42 moved the court not at all. The court simply responded by stating that the dismissal of the original dissolution action returned the grandparents to the situation that existed prior to the wife’s filing of a petition: “[i]n such circumstances the grandparents’ remedy is to arrange visitation through one or both parents.”43 “Judicial intervention is not authorized.”44 The “public policy considerations” embodied in the terms of the freestanding provisions “dictate that the State exercise restraint before intervening in the parents’ decision-making regarding their own children.”45 The addition of a freestanding grandparent visitation provision that the courts of some jurisdictions might have used to fuel expansive interpretations of grandparent visitation rights46 was, thus, used to limit visitation and promote childrearing autonomy. Oddly enough, however, the true harbinger of Von Eiff was not some eloquent affirmation of familial privacy but a pair of Florida appellate court decisions that upheld the constitutionality of the grandparent visitation statute against challenges brought under the state constitution’s privacy provision. The unconvincing logic and inadequate legal support of these two decisions combined seem ultimately to have laid the real foundation for the Von Eiff court’s conclusions. The first of this decisively indecisive pair, Sketo v. Brown, involved a constitutional challenge to the grandparent visitation statute by a widowed mother of two.47 The statute authorized court ordered grandparent visitation when the visitation would be “‘in the best interests of the minor child’ if, among other things, ‘[o]ne or both parents of the child are deceased.’”48 Pursuant to these provisions the paternal grandmother was awarded visitation with the children every other Friday from 6:00 P.M. to 6:00 P.M. on Saturday as well as every other Wednesday from 6:00 to 8:00 P.M., a day of visitation on certain specified holidays, and a week with each child during their summer vacation.49 The mother appealed.50 She argued that the grandparent visitation statute was “unconstitutional both facially and as applied, because it violates her right to privacy protected by the state and federal constitutions.”51 The mother took the position that as a fit parent she had a right to raise her children free of interference from the state in the absence of a compelling state interest imposed by the least restrictive means.52 She argued that no state interest in compelling visitation with grandparents over a parent’s objection existed.53 The mother’s arguments incorporated the litany of United Sates Supreme Court cases articulating principles of familial privacy and childrearing autonomy, cases now familiar beyond any real need for repetition to all students of family law.54 She bolstered the federal cases by citing four state cases characterizing the right of privacy in the Florida Constitution as providing greater protection than the federal guarantee of privacy.55 She argued by analogy that the intrusion of court ordered grandparent visitation, like the intrusions struck down in the cases cited, violated her “privacy right in respect to her children.”56 The Sketo court responded to her facial challenge of the statute in three sentences without any citation to authority of any kind.57 Generally speaking, a facial challenge to the constitutionality of a statute in the context of grandparent visitation would require a court to examine whether or not the plain terms of the statute, as written, establish an intrusion on a constitutionally protected right, and, if so, whether the intrusion, first serves a compelling state interest and, second, whether it does so in the least restrictive manner possible.58 The Sketo court apparently concedes that there is a constitutional right to child-rearing autonomy.59 The Sketo court’s response to the first prong of this inquiry is to simply assert that the state had a “sufficiently compelling interest in the welfare of children” to justify providing “for the continuation of relations between children and their grandparents.”60 The court does not qualify the phrase “welfare of children” in any way, leaving it up to the reader’s imagination to decide whether the phrase refers to the protection from harm or to some hypothetical enhancement of an otherwise satisfactory situation. Similarly, the court neither discusses “the continuation of relations between children and their grandparents,”61 nor cites authority for the proposition that it is a valid state interest.62 The court’s treatment of the second prong of Mrs. Sketo’s facial challenge is equally cursory: it notes that since, under the statute, the terms and conditions of visitation must be “reasonable”63 the statute was not facially unconstitutional.64 The court then makes the untoward assumption that an analysis of the constitutionality of the grandparent visitation statute as applied is unnecessary because it had concluded that the amount of visitation is excessive.65 To analyze whether a statute is unconstitutional as applied, a court examines whether a statute that appears constitutional on its face is nonetheless unconstitutional because of the manner it is being applied to the plaintiff.66 In the context of grandparent visitation, this analysis requires the court to examine the circumstances under which a court may intrude on a parent’s right to privacy in childrearing decisions.67 Since the state may properly intrude to protect a child from harm, and only to protect a child from harm, the analysis of whether the statute is constitutional as applied requires the court to examine whether court ordered visitation was necessary to protect the child from harm. If visitation is necessary to prevent harm to the child then the statute is not unconstitutional as applied to the family. In a sense, then, the amount of visitation awarded is not relevant,68 and so the question of whether the grandparent visitation statute is unconstitutional as applied cannot be answered by simply looking at the amount of visitation awarded. Yet this is exactly what the Sketo court did.69 The second case that presaged Von Eiff, Beagle v. Beagle, required the same judicial district of the court of appeals to examine a facial challenge to the subsection of the grandparent visitation statute authorizing court ordered visitation over the objections of married, natural parents in an intact family. Next Page