L A W
Visitat ion Right s of
Gra ndpare nts
By K. Dean Kantaras and Jennifer H. Cavill
PARENTS, AS THE NATURAL
guardians of their own children,
have the right to rear their children
free from government intrusion. This
right is protected by Article I, Section 23
of the Florida Constitution. This means
that parents have the right to decide if any
third parties, including grandparents, have
access to the child. When timesharing is
an issue between two parents, the Court
will enter a timesharing schedule based
upon the best interest of the child, pursuant
to §61.13, Florida Statutes. However,
when timesharing is an issue between
a parent and a third party, the test is
different. “The Florida Supreme Court
has…consistently held all statutes that
have attempted to compel visitation or
custody with a grandparent based solely
on the best interest of the child standard
... to be unconstitutional.” Cranney v.
Coronado, 920 So.2d 132 (Fla. 2nd DCA
2006); citing Sullivan v. Sapp, 866 So.2d
28, 37 (Fla. 2004).
Instead, for third party timesharing,
the Court must “follow a two-step test:
first, the court would determine whether
remaining with the natural parent would
be a detriment to the child; if so, the court
could consider the best interests of the
child.” Corona v. Harris, 164 So.3d 159 (Fla.
1st DCA May 15, 2015); citing Richardson
v. Richardson, 766 So.2d 1036 (Fla.2000).
Furthermore, a parent’s prior agreement
to grandparent visitation with the minor
child does not waive a parent’s right to
later enforce his or her constitutional
privacy right to raise the child free from
government intrusion and, therefore,
from later revoking the agreement for
visitation. See Forbes v. Chaplin, 917 So.2d
948 (Fla. 4th DCA 2005). Since a parent has
a constitutional right to rear their child free
from governmental intrusion, in order to
effectively waive this constitutional right,
the waiver must “be clearly established
that there was an intentional abandonment
of a known right. And, “where there is
doubt as to whether a constitutional right
If the burden is met, the Court may appoint
a Guardian Ad Litem to investigate the
matter and make a recommendation to
the Court on what is in the child’s best
interest. The Court will also refer the
matter to family mediation. If the matter
is not resolved at mediation, the Court
may award reasonable visitation to the
grandparent if the Court finds by clear
and convincing evidence that the parent
is unfit or that there is significant harm
to the child, that visitation is in the best
interest of the minor child, and that the
visitation will not materially harm the
parent-child relationship. See §752.011,
Florida Statutes. For more information on
grandparent visitation, contact K. Dean
Kantaras, P.A. at (727) 781-0000.
EDITOR’S NOTE: K. Dean Kantaras has been
licensed to practice law in Florida for over
eighteen years. Mr. Kantaras is the managing
partner of K. Dean Kantaras, P.A., a firm
handling cases in family law and immigration.
Mr. Kantaras is board certified in marital and
family law by the Florida Bar, a distinction
held by less than one percent of all attorneys
licensed to practice in Florida. He is “A” rated
by Martindale-Hubbell, the highest possible
rating. He is a member of the Supreme Court
of the United States, the United States Court
of Appeals for the 11th Circuit and Middle
District, The Florida Bar, and the Clearwater
Bar Association. His offices are located at 3531
Alternate 19, Palm Harbor, 34683, (727) 781-0000
and 1930 East Bay Drive, Largo, 33771,
(727) 544-0000. www.Kantaraslaw.com.
Jennifer Cavill, Esq. is an Associate Attorney
at the firm. She is a member of the Florida Bar,
the United States District Court-Middle
District of Florida, Clearwater Bar and St.
Petersburg Bar Associations and Canakaris
Inn of Court.
K. Dean Kantaras, Esq.
is waived, such doubt should be resolved
in favor of the party in whom the right is
vested internal citations omitted.” Forbes
v. Chaplin, 917 So.2d 948 (Fla. 4th DCA
2005).
Chapter 752, Florida Statutes addresses
grandparental visitation and permits a
grandparent to seek visitation rights with a
child when the child’s parents are deceased,
missing, or in a persistent vegetative state,
or whose one parent is deceased, missing,
or in a persistent vegetative state and
whose other parent has been convicted of
a felony or an offense of violence evincing
behavior that poses a substantial threat of
harm to the minor child’s health or welfare.
See §752.011, Florida Statutes. This right to
seek grandparental visitation is applicable
only in limited circumstances. The burden
is on the petitioning party at a preliminary
hearing to show prima facie evidence of
parental unfitness or significant harm to
the child. If the petitioner does not meet
this burden, the matter will be dismissed.
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128 TAMPA BAY MAGAZINE JANUARY/FEBRUARY 2016