Grandparent Rights Visitation - A Review

In Beagle, the paternal grandparents sought court ordered visitation over the objections of their son and daughter-in-law, the married, natural parents of the child in question.71 The parents filed a motion to dismiss.72 Granting the parents’ motion to dismiss, the trial court ruled that since no substantial harm threatened the child absent court ordered visitation, the state lacked justification for infringing upon the parents’ fundamental right to childrearing autonomy.73 The grandparents appealed.74 The Beagle court of appeals rejected the trial court’s assertion that visitation could only be granted over the objections of the parents when necessary to prevent harm to the child.75 Citing no authority and using an even less illuminating analysis than did Sketo, the court held that no such requirement could be inferred and that the statute’s only “requirements” were its terms: proof that the parents had prevented visitation between a grandparent and grandchild and proof that the visitation would be in the best interests of the child.76 Its conclusion thus allowed the court to avoid addressing whether the statute prevented harm to a child, or promoted a child’s welfare, or indeed, whether the statute was grounded in any legitimate source of state power at all.77 The real focus of the Beagle court of appeal’s decision, however, is the status of the family unit. Noting that the Beagles were an intact, natural family, in contrast to the widowed parent in Sketo, the court emphatically dismissed the distinction as legally insignificant.78 It held that one “loving parent[] is [no] more or less equal than any other and none is entitled to more or less privacy protection than are the others.”79 Although it had thus erased any distinction between the constitutional rights of married parents and all other parents, just as Von Eiff was later to do, the Beagle court of appeal’s interpretation of the situation as it had redefined it was quite different. The court asserts that the privacy provision of the state constitution surely protected all parents equally.80 Yet it makes no specific reference to this protection and does no analysis of its nature, scope or significance. Instead it simply extends the Sketo holding to the situation at hand.81 An award of visitation over the objections of married natural parents under section 752.01(1)(e), it ruled, was the constitutional equivalent of an award of visitation over the objections of a widowed parent under section 752.01(1)(a).82 In an eloquent dissent, thinly disguised as a concurrence, Judge Webster noted that although he also saw no valid distinction between the privacy rights of a widowed mother and those of married, natural parents and therefore felt constrained to concur, he believed Sketo was incorrectly decided.83 He asserted that the court should hold Florida’s grandparent visitation statute unconstitutional under both article I, section 23 of the Florida Constitution and the Fourteenth Amendment to the United States Constitution.84 To support this conclusion Judge Webster reviewed the Florida Supreme Court’s interpretation of the right to privacy under the state constitution, noting first that it “‘is much broader’ in scope than [the privacy conferred by] the Federal Constitution.”85 Judge Webster also observed that the state constitution’s guarantee of privacy had been extended to “decisions involving family relationships and the raising and education of children.”86 Setting this privacy interest into context, Judge Webster described the long-standing tradition of family privacy animating Florida’s domestic relations law. Long before the privacy provision of the state constitution was adopted, Florida’s courts recognized “the fundamental nature of the right of parents to raise their children unfettered by governmental interference.”87 Because Florida’s law recognized parental autonomy as a fundamental right, he noted, Florida law had long required any state intrusion to be “supported by a countervailing and superior interest.”88 In addition to establishing family autonomy as a fundamental right, protected from state intrusion absent a compelling state interest,89 Judge Webster’s analysis takes the additional step of discussing a compelling state interest as defined in related areas of law. Since the same right to family autonomy at stake in a grandparent visitation case is at issue in a dependency case, the same compelling state interest should be required to justify state intrusion.90 In both types of cases, then, intrusion should occur only when necessary to protect children from “abuse, neglect or death.”91 In contrast, a judge’s opinion that grandparent visitation would be in the best interests of the child where fit parents had concluded otherwise furthers no state interest at all.92 Indeed, it suggests that judges know children’s needs better than their parents do,93 in sharp contrast to the tenor of all other Florida domestic relations law.94 Furthermore, carrying the majority’s enhancement theory to its logical extreme, if the state could override parental decisions to enhance a child’s life with grandparent visitation, as Judge Webster asked, why could not the state also attempt to enhance a child’s life “by placement with a more attentive, loving or affluent couple?”95 Judge Webster also establishes that analysis of a grandparent visitation statute’s intrusion on family rights is the same under the federal constitution as under the state constitution.96 First, family autonomy is unequivocally protected as a fundamental right by United State Supreme Court cases; indeed “the interest of a parent in the companionship, care, custody and management of his or her children ‘come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements.’”97 Second, the intrusion occasioned by forced grandparent visitation is squarely within the area of parental decision making that the right of family autonomy protects.98 To suggest that it is not because the intrusion “is minimal . . . is to trivialize the importance of the parents’ role in molding the character of their children.”99 Thus, under federal as well as state law analysis, the statute at issue would be unconstitutional as an intrusion on family autonomy unsupported by a compelling state interest.100 As Judge Webster concludes, to uphold the constitutionality of the statute is both legally wrong and inconsistent with the role of the Florida courts as “guardians of the rights and liberties of the people.”101 The stage had thus been set for Von Eiff in three ways. First, although Sketo had affirmed the facial constitutionality of the grandparent visitation statute, it had done so with absolutely no use of authority. It listed the cases upon which the respondent parent had built her case, but failed to distinguish them. Any law clerk who actually perused the parent’s authorities would thus find unequivocal statements that “among the decisions that an individual may make without unjustified governmental interference are personal decisions ‘relating to . . . family relationships and child rearing’”102 with no suggestion as to why such a statement should not apply. Second, Judge Webster’s concurrence in the Beagle court of appeals decision had systematically criticized Sketo. After actually analyzing the cases Sketo had chosen to simply list, the concurrence articulated a compelling case stating that a right of privacy shielded parental decisions regarding grandparent visitation from any state oversight or review. And finally, the Beagle court of appeals majority had disposed of any legal distinction between the constitutional rights of single and married parents, apparently unconcerned – or unaware – that the obliteration of this distinction was a double-edged sword. If no legal distinction exists between the constitutional rights a single parent may claim and those attaching to married, natural parents, then the recognition of parental autonomy can expand as well as contract. Deeply rooted principles of family autonomy slumbering in those older Florida decisions may well awake. Indeed, with the legal distinction based on marital status obliterated, a court that elected to limit parental rights had actually cleared the way for expanded recognition of them. Additionally, judicial sentiment in Florida - no less than in the rest of the country -103 seemed poised to do The three and a half years that passed between the court of appeals decisions in Sketo and Beagle, and the Florida Supreme Court’s landmark decision in Von Eiff, saw a growing momentum in the Florida courts favoring parental autonomy, punctuated by decisions invalidating Florida’s grandparent visitation statute, subsection by subsection. First, the Florida Supreme Court reversed the Beagle court of appeals decision104 by unanimously holding that section 752(e) was an unconstitutional infringement on “the rights of parents to raise their children free from government intervention.”105 The court declared that the statute impermissibly allowed an award of visitation without first requiring a preliminary showing that the child would be harmed without such visitation.106 The Florida Supreme Court noted that its conclusions were limited to the facts before it: a situation in which “a child is living with both natural parents, at least one natural parent objects to grandparent visitation, and no relevant matters are pending in the court system.”107 However, if the court hoped the issue of grandparent visitation in the Florida courts was thus squelched, it was mistaken; its effort to limit the effect of its opinion was to no avail. In Ward v. Dibble, decided four months after the Florida Supreme Court’s decision in Beagle, 108 the court of appeals reversed an award of grandparent visitation issued in favor of the maternal grandmother over the objections of the children’s widowed father.109 The decision rested on the court’s conclusion that no competent evidence supported the trial justice’s finding that the visitation was in the best interests of the children; the father’s constitutional arguments were therefore moot.110 The constitutional issue obviously continued to trouble the court; however, in its first substantive footnote, for example, the court described the Florida Supreme Court’s decision in Beagle, invalidating awards of visitation made pursuant to section 752.01(e) over the objections of married, natural parents.111 It commented, further, that in Sketo the First District Court of Appeal had ruled that a different subsection of that statute was constitutional where an award of visitation was made over the objections of a widowed parent.112 Having juxtaposed the two opinions, the Ward court observed that “[f]rom the standpoint of a parent’s fundamental right to raise his or her children, the distinction between an intact marriage where one parent objects to visitation and a case where one parent has died and the surviving parent objects to visitation is hard to discern.”113 Two footnotes at the end of the opinion further foreshadow the path the Florida courts were to take. In the first, the court cites Steward v. Steward, 114 noting that in Steward the Nevada Supreme Court construed a similar grandparent visitation statute to “embody a presumption against grandparent visitation when divorced parents with full legal rights to the children agree that it is not in the child’s best interest to see its grandparents.”115 Finally, in a concluding footnote, the court notes that, “constitutional challenges to [grandparent visitation] statutes have apparently just begun.”116 The constitutional question gained momentum in the Florida courts with an impassioned dissent to the Third District Court of Appeal decision in Von Eiff. 117 The majority upheld the constitutionality of the subsection allowing grandparent visitation over the objections of the child’s parent when the other natural parent is deceased; it did so by factually distinguishing Beagle. 118 The dissent attacked the majority’s logic with almost gleeful eloquence, taking it to its logical extreme.119 If, as the majority argued, a valid distinction could be made between the constitutional rights of married parents and those of divorced parents then, the dissent noted, the state could not enforce routine regulations like vaccination requirements and school attendance laws when a child’s family was intact.120 Furthermore, the state could “(1) enact any regulatory measure deemed to be in the child’s best interest and (2) enforce the same over parental objections as long as the child’s family is not intact.”121 Having thus turned the majority’s logic on its ear, the dissent – perhaps unnecessarily – observed that “nothing in the Beagle analysis [ ] suggest[s] that parents who are single, widowed, separated or divorced should have less constitutionally protected privacy rights in the rearing of their children than married parents in the context of an intact family.”122 The Von Eiff parents – thus well armed – sought review in the Florida Supreme Court.123 A year was to elapse. Five court of appeals decisions over that next year124 either questioned or invalidated outright three of the remaining four sections of Florida’s grandparent visitation statute.125 One lone section survived when no one invoked it to seek court ordered grandparent visitation on the grounds that a parent had abandoned the child.126 In Fitts v. Poe, 127 and Russo v. Perisco, 128 for example, judicial panels in the fourth and fifth districts of appeal concluded that under the Florida Constitution a widowed parent’s right to privacy in the context of grandparent visitation was equal to that of a married, natural parent and invalidated the corresponding provision on constitutional grounds.129 In Williams v. Spears, a panel for the First District Court of Appeal concluded that a divorced parent’s right to privacy in the context of grandparent visitation was equal to that of a married, natural parent and invalidated the corresponding provision on constitutional grounds.130 In Ocasio v. McGlothin, a panel for the Third District Court of Appeal concluded a mother who had never married had a right of privacy in the context of grandparent visitation equal to that of a married natural parent and invalidated the corresponding provision on constitutional grounds.131 Judges in judicial districts who were bound by the rulings in Sketo or Von Eiff reluctantly132 affirmed awards of grandparent visitation during this period and then sent a total of three separate certified questions regarding the constitutionality of court ordered grandparent visitation to the Florida Supreme Court.133 The gathering storm, it seemed, had reached critical mass. III. THE FLORIDA SUPREME COURT RULES: “IT IS NOT FOR THE GOVERNMENT TO DECIDE.”134 A. THE RIGHT AT ISSUE: PERSONAL PRIVACY The Von Eiff analysis begins135 by characterizing the right at issue as a liberty interest protected by the Fourteenth Amendment to the United States Constitution.136 It explains that personal privacy is a liberty interest under the Fourteenth Amendment; in essence, the interest in making certain decisions free of governmental control.137 The court notes that this interest has long been held to include decisions regarding “the care, custody and management of . . . children.”138 It then traces the evolution of federal constitutional recognition of childrearing autonomy from the educational decisions protected in Pierce v. Society of Sisters139 through the decision to discontinue a child’s formal education, protected as a necessary part of an Amish parent’s childrearing authority.140 Noting that these rights are subject to limitation if “it appears that parental [decision making] will jeopardize the health and safety of the child, or have a potential for significant social burdens,”141 the court stresses that the right of childrearing autonomy corresponds to the concept of family life as a “private realm” the state may not enter and thus to the wider range of privacy rights inherent in the federal constitution itself.142 Having painstakingly laid out the federal constitutional framework of the right at issue, the Von Eiff decision then notes that Floridians enjoy the additional protection of the state’s own freestanding privacy provision.143 That provision, the court explains, confers a right of privacy “much broader in scope, embrac[ing] more privacy interests, and extend[ing] more protection to those interests than its federal counterpart.”144 Thus, with the exception of its single, brief paragraph on the Florida Constitution, the court’s characterization of the privacy right protecting childrearing decisions is nearly the same litany of concepts, cases, and quotes found in dozens of grandparent visitation decisions nationally.145 In some instances, the Von Eiff court literally quotes the authorities and logic from another grandparent visitation case.146 In fact, it follows the same sequence and uses many of the same authorities as does the United States Supreme Court itself in its statement of the fundamental right to childrearing autonomy implicated by a grandparent visitation statute.147 Indeed, what is perhaps most remarkable about Von Eiff’s analysis of the right at stake is that it is not remarkable at all. Although Von Eiff purports to base its decision on the state constitutional right,148 it does not devote any space to discussing a state court’s interpretation of it. Although Von Eiff notes that the state right of privacy is broader and more comprehensive than the federal right,149 nowhere does its analysis suggest that such additional breadth is necessary to encompass parental rights. Indeed, the only list of state cases that Von Eiff includes apply constitutional concepts to childrearing autonomy under the Fourteenth Amendment of the federal Constitution.150 The enhanced right of privacy protecting Floridians thus appears to represent a sort of back up plan on the court’s part; providing an extra layer of conviction, perhaps, but playing no actual role in the court’s analysis. Von Eiff’s characterization of the privacy right at stake is thus significant for two practical reasons. First and most obviously, since the court rests its analysis of the right at stake on federal precedent, its significance is not limited to Florida, but rather can serve as a model in any jurisdiction. Second the court’s characterization of the right at stake shares a gloss of legitimacy acquired from frequent repetition of similar analyses in other state courts.151 Its sheer unremarkableness is a virtue: gone are the days when a state court’s use of these same federal cases to articulate a constitutional right of childrearing autonomy in a grandparent visitation case could provoke controversy and disapproval.152 The sheer predictability of Von Eiff’s characterization of the right at stake lends added credibility to the interrelated portions of its analysis that are not such common features of grandparent visitation law – like application of the harm standard. B. IDENTIFYING A LEGITIMATE INTRUSION ON PARENTAL PRIVACY: THE HARM STANDARD The Von Eiff grandparents focused on the fact that the grandchild’s biological mother – their daughter – was deceased to distinguish their suit from the suit filed against married natural parents that the court had so recently rejected in Beagle. 153 Since a right of childrearing autonomy protects parents from the intrusion of court ordered visitation,154 the state can only intrude on parental decision-making if it can show that a compelling state interest is threatened.155 Furthermore, in the context of grandparent visitation, Beagle had already concluded that the compelling state interest arises only where the child is threatened with harm.156 This much the Von Eiff grandparents were apparently willing to concede. Building on these precepts however, they successfully argued to the court of appeal that Florida had a compelling state interest in preserving the bond between grandparents and grandchildren, where a parent has died.157 They thus sought to satisfy the harm requirement by characterizing the death of the child’s mother as a threat of harm. The grandparents’ compelling state interest argument is particularly significant because it focuses on the fact that there was a disruptive event in the child’s life – and thus is typical of a widespread – and illogical – pattern afflicting a significant segment of grandparent visitation law. Typically, legislators and judges are willing to concede that the state cannot intrude on the decisions of a child’s fit, married, and natural parents through a grandparent visitation suit. The legal basis for such a position is that the state may not second-guess the decisions of a fit parent. Once family disruption has occurred, however, many legislators and judges are willing to tolerate intrusions on the decisions of fit parents through a grandparent visitation suit even though no event that implicates a parent’s fitness has occurred. A majority of state statutes specifically permit court ordered grandparent visitation where family disruption has occurred.158 The Von Eiff grandparents’ position that the death of a parent is a threat of harm to a child thus reflects a tendency to overlook the legal basis for family autonomy and to confuse a vague, lay sense of the term “threat of harm” with the precise legal meaning it must have. The Von Eiff decision’s application of the legal standard of harm developed in other child protection cases provides an effective antidote. Von Eiff accomplishes this both by describing what circumstances have satisfied the legal harm standard in the past and by pointing out the categorical difference between the grandparent’s position and the legal standard. The court first cites authority that children are threatened with harm when they may be abused, neglected or killed.159 In the first case it cites, parental rights to a newborn were held properly terminated to protect the infant from harm based on treatment of her siblings.160 Evidence showed that the siblings were bound at the wrists, tied to furniture and left alone for such protracted periods that they developed personality problems and subnormal IQ’s.161 Second, the court notes that children subjected to sexual exploitation in the home are being harmed, that the state has a compelling interest in protecting them, and thus the state may properly intrude on family life to do so.162 Finally, the court notes that when children are denied medical treatment “necessary for the preservation of life” the harm standard is also satisfied and the state may therefore override the parents’ childrearing decisions to provide treatment.163 The image of “harm” that emerges is thus a stark one; “the state can satisfy the compelling state interest standard when it acts to prevent demonstrable harm to a child.”164 In contrast to the harm standard it has drawn, the court notes that the trauma a child suffers from one parent’s death may elicit a range of responses from the surviving parent.165 Some parents, it notes, may feel counseling will help the child.166 Some may conclude that the child should spend more time with the deceased parent’s parents, siblings or friends, while others may restrict those relationships.167 The court thus contrasts situations that represent harm to children to which no reasonable person would disagree and the circumstances before it, where reasonable options abound. “Harm” is characterized as a “stringent standard,”168 not a question of what might be better or best.169 The practical genius of the court’s explication of harm is that it uses a type of case law found in all jurisdictions to define harm in a way that is intuitively as well as analytically correct. Courts in all jurisdictions must render decisions that intrude on family life, whether to remove a child from a parent’s neglectful custody or to order medical treatment for a child over the parent’s vehement objections. All jurisdictions have thus addressed what factual circumstances will constitute a sufficiently serious threat to a child’s well being to satisfy the harm standard in the two specific categories to which the Von Eiff court refers: medical treatment cases and neglect or abuse cases. The uniformity of the conclusions reached in all jurisdictions is the best affirmation of the Von Eiff court’s use of these types of cases to distinguish “harm” from a concern with which of several acceptable options is best. In medical treatment cases, allegations of “harm” are based on the physician’s assertions that parents are unwilling to authorize certain medical treatments for a child.170 The hospital seeks a court order declaring the child dependent or neglected and in need of medical care with regard to the specific medical treatment at issue.171 The parent’s rights are otherwise unaffected. If the hospital can obtain such an order, the state’s parens patriae power supplies the authority to treat the child despite parental objections.172 The child, in short, has been adjudged to be in danger of harm. Not all instances in which physicians and parents clash over treatment decisions will satisfy the harm standard, however. It is not enough, for example, that the petitioning physicians prefer one treatment to another, if both are considered acceptable treatments for the condition. Indeed, the parents will prevail even if their chosen treatment is not the medical equivalent of the physician’s choice, as long as it is medically acceptable treatment. The case of In re Josseph Hofbauer, for example, the state’s petition alleged that a seven year old was a neglected child when he suffered from Hodgkin’s disease and his parents rejected recommendations of the “conventional” treatment for the disease, including radiation treatments and chemotherapy.173 The parents had, instead, elected to provide him with nutritional and metabolic therapy.174 The parents prevailed.175 The court noted that the parents had provided medical treatment administered by a duly licensed physician and in fact, testimony suggested that the child’s condition improved.176 The court noted further, that the parents had “justifiable concerns”177 about the deleterious effects of radiation treatment or chemotherapy.”178 The court concluded that the parents had, in fact sought qualified medical treatment for their child.179 The fact that it was “not widely embraced”180 by the medical community was an insufficient reason to countermand the parents’ treatment decision.181 In short, the child could not be considered threatened with harm. Legitimate differences of opinion regarding his treatment existed, and since the suit could be reduced to the question of what was “better,” the harm standard could not be satisfied.182 The harm standard thus can be satisfied where – and only where – something essential must be done for the child to avert serious consequences. A dispute over two options that are both at least minimally acceptable cannot suffice. Furthermore, where the consequences of inaction do not rise to the level of an emergency, or do not represent a serious threat to the child’s well being, courts will usually find that the harm standard is not satisfied. Thus, courts have refused to authorize corrective spinal surgery where the child’s life was not in any danger183 or to order repair of a child’s cleft palate where there was no emergency, time... - Next Page