The Florida Bar

Florida Bar Journal

Grandparents Have Rights After All

Family Law

Just when you thought grandparents’ rights, or the lack thereof, was a settled issue, it has become apparent that one area has not been settled. Do grandparents who have once been awarded custody have the same rights, in an action for modification, as a parent who has been awarded custody, or does res judicata mean anything in this context?

There is no area of custody law more fraught with conflict between the rights of a child and the legal rights of a parent than the area of third party custody involving grandparents. Although the statutory authority previously granting grandparents the right to seek custody and visitation rights of their grandchildren1 and to intervene in custody actions2 have been abrogated by the Florida Supreme Court in Von Eiff v. Azicri, 720 So. 2d 510 (Fla. 1998), and Richardson v. Richardson, 766 So. 2d 1036 (Fla. 2000), respectively, many grandparents and other third parties who obtained permanent custody prior to the demise of these statutes still have custody today.

The conflict between the biological parent’s presumptive right to be the custodial parent and the child’s best interests to maintain a stable relationship in a grandparent’s home pursuant to a final judgment of custody is heightened in the modification setting. The reason why grandparents or other third parties have child custody often is due to the biological parents’ inability to take care of their children because of an unstable lifestyle, lack of employment, drug and/or alcohol abuse, and other lifestyle choices inconsistent with raising a child. The parent in this scenario consented to the grandparent’s custody in a court proceeding or the grandparent was adjudicated the custodial parent prior to the demise of the grandparent custody and visitation statutes. Assuming the grandparent was granted “permanent custody” (until the minor child reaches the age of 18 or becomes emancipated), the question remains as to the burden of proof at the modification stage and who bears that burden, when the parent comes back later in the child’s life “rehabilitated” and ready to resume responsibility for the care and custody of the child.

It is clear in the parent v. parent context that a parent who seeks to modify a prior award of custody has an “extraordinary” burden to plead and prove that there has been a substantial change in circumstances since the entry of the final judgment addressing custody, and that failure to change custody would be detrimental to the child.3 However, does this standard apply in the parent v. grandparent context? It is the purpose of this article to examine the proper standard to be utilized in custody modification cases between parents and grandparents.

In Young v. Young, 732 So. 2d 1133 (Fla. 1st DCA 1999) , the First District Court of Appeal reversed the trial court’s order modifying custody from the mother to the father because the evidence failed to establish either that the child’s needs were being unmet in any way by the mother or that maintaining the status quo would be detrimental to the child. The court in Young further stated: “This test involves more than a decision that the petitioning parent’s home would be better for the child, and requires a determination that there is some significant inadequacy in the care provided by the custodial parent.” Id.

The Third District Court of Appeal most recently reaffirmed and clarified the above test in Perez v. Perez, 734 So. 2d 1177 (Fla. 1st DCA 1999). The court enunciated a two-fold test. First, the party seeking to modify custody must prove a substantial and material change in circumstances and, second, that continued custody by the custodial parent would be detrimental to the child before custody can be modified. Query: Does this standard apply to the parent who is seeking to modify custody placed with the grandparents under a final judgment enacted prior to the demise of the grandparent custody/visitation statute?

Case law uniformly recognizes a “parental preference” in deciding custody actions between grandparents and parents. The “parental preference,” with its constitutional foundation of privacy, recognizes a parent’s “longstanding and fundamental liberty interest in determining care and upbringing of their children free from the heavy hand of government paternalism which is protected by the federal and state constitutions.” U.S.C.A. Const. Amend. 14; Beagle v. Beagle, 678 So. 2d 1271 (Fla. 1996). The Florida Supreme Court in Beagle found that §752.01(1)(e) was facially unconstitutional because it infringed upon the rights of parents to raise their children free from government interference.

The next assault on grandparent rights was made by the Florida Supreme Court in 1998 in Von Eiff. In that case, the Florida Supreme Court dealt with a different section of the grandparent visitation statute, §752.01(1)(a), which provided for grandparent visitation where one or both parents of a child are deceased and visitation is determined to be in the best interest of the child. The court in Von Eiff applied the same reasoning as Beagle in striking down F.S. §752.01(1)(a).

Although the grandparent visitation statute was declared unconstitutional in Von Eiff, that case does not bar court-ordered grandparent visitation if there is proof of demonstrable harm to the child.

Subsection (1)(a) suffers from the same infirmity and therefore also fails to survive the compelling state interest test. Subsection (1)(a) mandates that the trial court “shall” order grandparent visitation upon the grandparent’s petition, “when in the best interest of the minor child,” without first requiring proof of demonstrable harm to the child.

Arguably, it appears that if there is proof of demonstrable harm to the child, grandparent visitation can be required.

The Florida Supreme Court dealt the final mortal blow to grandparent custody rights in Richardson by declaring unconstitutional F.S. §61.13(7), which provided

In any case where the child is actually residing with a grandparent in a stable relationship, whether the court has awarded custody to the grandparent or not, the court may recognize the grandparents as having the same standing as parents for evaluating what custody arrangements are in the best interest of the child.

Richardson, 734 So. 2d at 1064.

This is the statute under which many grandparents have custody today.

Under former F.S. §61.13(7), grandparents were given the right to intervene in a child custody dispute under Ch. 61 and were granted the same legal custody rights as natural parents provided that the grandparents could establish that the child was actually residing with them in a stable relationship. Further, this statute placed grandparents on parity with parents by applying the “best interest of the child” standard at the original custody stage without first determining if the parent was unfit or whether detriment would result to the child if custody was awarded to the parent.

It is also important to note that Von Eiff, Beagle, and Richardson involved initial determinations of visitation or custody, not modification. The former F.S. §61.13 best interest of the child standard stood in marked conflict with the “parental preference” standard in which the parent was afforded preference over grandparents or other third parties in the initial custody decision unless the parent was unfit, had abandoned the child, or detriment would result if custody was awarded to the parent.

The unconstitutionality of the statute which previously enabled grandparents to obtain custody at the trial level does not automatically divest them of custody. Any change in the substantive law affecting grandparents’ rights to custody and visitation is not retroactive so as to avoid an otherwise jurisdictionally valid final judgment. Changes in substantive rights have prospective application only.4

The only district to have tackled head-on the issue of the appropriate burden of proof where a parent seeks to modify custody maintained by the grandparent is the Fifth DCA in Carpenter v. Berge, 686 So. 2d 759 (Fla. 5th DCA 1997). In Carpenter, the Fifth District Court of Appeal dealt with the proper legal standard to apply to a modification of child custody brought by the natural mother (Berge) against the child’s grandmother (Carpenter). The Fifth District held that the trial court had incorrectly ruled that the mother had only to show that she was a fit parent in order to regain custody. In reversing the trial court, the Fifth District stated: “Rather, modification of permanent child custody may be ordered only upon showing of a substantial change in circumstances since entry of the original order and that the welfare of the child would be promoted by a modification of custody.” Id. at 760.

This was consistent with the earlier Fifth DCA case of Turner v. Walvick, 666 So. 2d 971, 972 (Fla. 5th DCA 1996), where the court stated that after custody was awarded to the maternal grandmother, the mother and father must show a substantial change in circumstances to change custody. Similarly, in Davis v. Dixon, 604 So. 2d 1236 (Fla. 3d DCA 1992), a parent seeking to modify an order granting grandparents’ visitation had to show substantial change in circumstances and that the change would be in the best interest of the child.

The First District Court of Appeal in S.G. v. C.S.G, 726 So. 2d 806 (Fla. 1st DCA 1999), affirmed the trial court’s “modifying” a final judgment in favor of the parent where the grandparents originally had obtained custody under F.S. §61.13(7). The court repudiated the best interest standard finding that it was inappropriate to prove that it was in the child’s best interest to remain with the grandparents. At first blush it would appear that the First District changed the modification burden by placing it on the grandparents who had custody, requiring proof that the mother was unfit, had abandoned the child, or that it would be detrimental to the best interest of the child for the child to be placed with the mother.

It is significant to note, however, that in S.G. the mother never appeared at the trial level when the grandparents obtained custody and never litigated against or consented to the abandonment of her “preferential parent rights.” Therefore, arguably, S.G. is not a true “modification case” and was essentially an initial determination of custody between the parent and grandparent. However, to the extent that S.G. may be construed as a modification action, there is conflict between the First DCA and the Fifth DCA which blazes the way to the Florida Supreme Court on the issue of the burden of proof for custody modification between the parent and grandparent and on whom that burden falls.

Historically, the reason for placing the burden of proof on the moving party in a custody modification action is to ensure the child’s stability by discouraging a party otherwise entitled to custody from uprooting the child from a stable home environment where he or she is doing well. Hence, the criterion of “promoting the best interest of the child” or establishing “detriment if custody is not changed,” once a substantial change in circumstances has been established. Consequently, in the parent v. parent case, the improvement of one parent’s circumstances, by marriage or financial success, does not constitute a change in circumstances to justify a change in custody.5 Query: Does or should the same test apply in parent v. grandparent cases? Throughout the country and outside of the First District in Florida, at the modification stage the answer is overwhelmingly yes.

What does the future hold as rehabilitated parents return to court to regain custody of their children whom they had lost initially under statutes since declared unconstitutional? Will these custody determinations remain viable or will they become fossilized remains of a bygone era? Assuming S.G. is interpreted as not reversing the modification standard by requiring the grandparent to defend his or her final judgment of custody by proving the mother unfit in order to retain custody, then Carpenter is the law. If S.G. is interpreted as shifting the modification standard to the grandparent who has custody, then there is a conflict between S.G. and Carpenter. Which right is greater: the interest of the child to remain in a stable home by virtue of a final judgment of custody, or the parents’ right to raise their child regardless of when the parent comes back in the child’s life? Can a parent come back three, four, or 10 years later claiming rehabilitation and succeed in obtaining custody unless the grandparent can prove long-lasting detrimental effect on the child? Such litigation can cause a long-term or permanent rift between the grandparent and their child (the parent).

Numerous cases from other jurisdictions which apply the substantial change in circumstance standard to custody modification disputes between parents apply the same standard to custody modification actions between parents and grandparents.6

Placing the burden of proof on the parent seeking to modify custody of children placed with grandparents has been the law for the past quarter century. Johnson v. Johnson, 681 P.2d 78 (Okla. 1984), required the mother to show a favorable change in circumstances directly affecting the best interests of the children to warrant a removal of custody from the grandparents. In Dyer v. Howell, 212 Va. 453, 184 S.E.2d 789, 791–92 (1971), the father, who had been formally divested of custody of his daughter in favor of the maternal aunt and uncle, was required to demonstrate a substantial change in circumstances to regain custody. The rule that the natural parent is entitled to custody unless proven unfit was not applicable.

The same reasoning was also applied by the Alabama Supreme Court in Ex Parte McLendon, 455 So. 2d 863 (Ala. 1984). In that case, by agreement of the parties, which was made part of the divorce decree, custody of the child was awarded to the paternal grandparents. The mother then sought modification of the decree to modify custody. The court set out the standard for modification: “A natural parent has a prima facie right to the custody of his or her child. However, this presumption does not apply after a voluntary forfeiture of custody or a prior decree removing custody from the natural parent and awarding it to a nonparent. ” Id. at 865. (Emphasis added.) Thus, when a parent has transferred custody to another, whether to a nonparent or the other parent, by agreement or by contested proceeding, the noncustodial parent must show a substantial change in circumstances to regain custody. Id., citing Greene v. Greene, 249 Ala. 155, 157, 30 So. 2d 444, 445 (1947), quoting Stringfellow v. Somerville, 95 Va. 701, 29 S.E. 685, 687, 40 L.R.A. 623 (1898).

Similarly, in Lear v. Lear, 124 Or. App. 524, 863 P.2d 482 (1993), the court reached the same result with the same analysis. In that case, the paternal grandparents were awarded custody of the child after the mother and father were divorced. In the later modification action, the court framed the issue as follows:

The issue is whether the party who has been awarded custody again has the burden of proving that there are compelling reasons not to award custody to the natural parent or whether the moving party, the natural parent, must first prove that there are changed circumstances since the earlier determination that there were compelling reasons not to award custody to the parent.

863 P.2d at 484.

The court concluded that once custody has been awarded to the grandparent, the parent has the burden of proof to establish a substantial change in circumstances:

To allow the natural parent to relitigate custody without a change of circumstances could subject the child, the child’s custodian, and the court to endless relitigation of the same issue. Such a result would be inconsistent with an award of permanent custody and would not appear to be in anyone’s best interest.

Id. at 484.

Another reason that the “substantial change in circumstances” test and burden on the moving party must apply to modification of custody between parents and third parties is because it promotes the stability of children. In Bivens v. Cottle, 462 S.E.2d 829 (N.C. App. 1995), the mother sought to modify a custody order awarding custody of the children to the maternal grandparents. The court applied its modification standard requiring a substantial change in circumstances. There was nothing to suggest in the statute or by way of statutory construction that a different standard must apply when the party against whom the modification action was brought is a nonparent.

This policy statement, that the parental preference standard belongs at the initial custody stage, rather than to the modification stage because the child’s need for stability demands that the substantial change of circumstances standard be applied, was also adopted in In Re Interest of Ferguson, 927 S.W.2d 766 (Tex. Ct. App. 1996). In Ferguson, the mother moved to modify a custody order naming the paternal grandparents as managing conservators (custodians) of her children. The court concluded that the parental presumption was inappropriate in modification proceedings:

We conclude that, in an original custody proceeding, the court must heavily favor parents by reason of the rebuttable presumption [that a parent is fit]. If a nonparent rebuts the presumption in the original custody determination, the parents in a subsequent modification proceeding must meet the requirements for a change of custody [i.e., a material change in circumstances].

Id. at 768–69.

The same result was reached in C.R.B. v. C.C., 959 P.2d 375 (Alaska 1998). In C.R.B., after the mother and father divorced, the maternal grandparents moved for interim and permanent custody of their grandchildren due to the mother’s drug addiction. The court granted custody to the grandparents. The father did not appear at the initial hearing. The father later moved to modify custody. C.R.B. followed the authority from across the nation which supports the grandparents’ position at the modification stage that the parent must show a substantial change in circumstances and detriment if custody is not modified.

The Alaska Supreme Court in applying the same standard in modifying custody between parents and grandparents noted the competing interests between children and parents at play:

Two foundational policies in child custody law collide in this case: the law’s preference for parental over nonparental custody, and the law’s desire to meet children’s needs for stability by requiring a substantial change in circumstances before modifying custody.

Id. at 379.

Stability is an especially critical factor when a special needs child is involved with educational and emotional handicaps, such as a learning disability or attention deficit/hyperactivity disorder. The court in C.R.B. v. C.C. concluded that the parental preference doctrine applies only in initial custody determinations and not to a modification of custody.

Once a court has properly transferred custody from a parent to a nonparent, it does no good to apply the doctrine to weaken the substantial change requirement for modification.. . . Having once protected a parent’s right to custody, at the risk of sacrificing the child’s best interests, we should not then sacrifice the child’s need for stability in its care and living arrangements more readily than in a parent-parent case.

* * *

We thus hold, as a general rule, that a parent moving to modify a nonparent’s court ordered, permanent custody must show no less substantial change in circumstances than a parent in a typical case.

Id. at 380.

The Supreme Court of Missouri in Searcy v. Seedorff, 8 S.W.3d 113 (Mo. 1999), applied the same standard for modifying custody in parent v. grandparent cases as in parent v. parent cases. The Supreme Court of Missouri stated: “The rationale for requiring a substantial change in circumstances of the child or custodian, whether parent or third party, includes the desire to maintain a stable nurturing environment for the child. ” Id. at 117. ( Emphasis added.)

Likewise, in Searcy, the court stated that the relevant statute provides no exception to the requirement that a moving party, any moving party, who seeks to modify a custody order must first establish a substantial change in circumstances of the child or the child’s custodian. Therefore, the parental preference presumption in an initial custody proceeding has no place in modification proceedings. As this issue was never raised or adjudicated in S.G., Carpenter v. Berge is the leading case on this issue in Florida and is consistent with the law throughout the country.

Finally, the most recent custody modification case between parents and custodial grandparents that placed the burden of proving a substantial change of circumstances upon the parent, who was the moving party, is Rychel v. Williams, 2000 WL 1258428 (Ark. Ct. App. September 6, 2000). In that case, Andrea Rychel’s daughter, Katrina, was placed in the custody of Katrina’s paternal grandmother, Rosemary Williams. The mother argued on modification that as the natural mother of Katrina, she had a fundamental right to have custody of her daughter absent a showing that she was unfit. The court stated that while it was generally true that as between a parent and grandparent, the law awards custody to a parent unless he or she is incompetent or unfit, when a parent seeks a change in custody, then the parent must show a change of circumstances.

In reaching this conclusion, the Arkansas court relied upon Jones v. Strauser, 266 Ark. 441, 585 S.W.2d 931 (1979), which had previously held that when a parent enters into an agreement that the grandparent has custody of the child, the parental preference is not forfeited, but its effect is so diminished that the parent bears the burden of showing a change in circumstances.

Therefore, where the parent has appeared at the trial level or waived his or her appearance at the time custody is granted to the grandparent, the overwhelming law throughout the country supports the substantial change in circumstances test upon modification with the substantial burden on proof upon the moving parent. As these two foundational policies in child custody law collide—the fundamental right of the parent to raise her or his child and the child’s need for stability—the latter should continue to be applied in the modification setting to protect the stability of the child where the parent’s custody rights were adjudicated at the trial level. When the Florida Supreme Court is confronted with this issue, it is hoped that they follow the lead set by most states who have grappled with this most vexing issue. Only then can grandparents rest assured that they won’t wake up one morning and find the child they reared successfully by lawful order plucked up and disappear by judicial fiat, and with no right to ever see the child again.

1 Fla. Stat. §752.
2 Fla. Stat. §61.13(7).
3 Fla. Stat. Ann. §61.13(2)(c) (Supp. 2000); Young v. Young, 732 So. 2d 1133 (Fla. 1st D.C.A. 1999); Sullivan v. Sullivan, 736 So. 2d 103 (Fla. 4th D.C.A. 1999); DeLapouyade v. DeLapouyade, 711 So. 2d 1202 (Fla. 2d D.C.A. 1998); Bartolotta v. Bartolotta, 687 So. 2d 1385 (Fla. 4th D.C.A. 1997); Landingham v. Landingham, 685 So. 2d 946 (Fla. 1st D.C.A. 1996); Heatherington v. Heatherington, 677 So. 2d 1312 (Fla. 2d D.C.A. 1996); Miller v. Miller, 671 So. 2d 849 (Fla. 5th D.C.A. 1996); Bethea v. Bethea, 596 So. 2d 1279 (Fla. 3d D.C.A. 1992).
4 Whight v. Whight, 685 So. 2d 135 (Fla. 1st D.C.A. 1994); and Young v. Altenhaus, 472 So. 2d 1152, 1154 (Fla. 1985).
5 Kilgore v. Kilgore, 729 So. 2d 402 (Fla. 1st D.C.A. 1998); Buttermore v. Meyer, 559 So. 2d 357 (Fla. 1st D.C.A. 1990).
6 In the states that are discussed below, Alabama, Alaska, Arkansas, Missouri, North Carolina, Oklahoma, Oregon, Texas, Virginia, and West Virginia, the standard for a change in custody is a substantial change in circumstances. It is also worth noting that in these states, as in Florida, in an initial custody action between third parties and natural parents, the natural parents receive an automatic preference, based on the Supreme Court’s pronouncement in Santosky v. Kramer, 455 U.S. 745, 753
that parents have a fundamental liberty interest in the care, custody, and management of their child, and that this interest is far more precious than any property right. Jeff Atkinson, 2 Modern Child Custody Practice §8.03.

Further, in these states, as in Florida, grandparent visitation is not granted to any grandparent who seeks it. See Beagle v. Beagle, 678 So. 2d 1271 (Fla. 1996). Rather, the same constitutional constraints as found in Florida case law have limited grandparent visitation law in these states as well. See Turner v. Turner, 706 So. 2d 1219 (Ala. Civ. App. 1997) (grandparent visitation statute must be restricted to its terms, and applies only on death, divorce, or adoption; it cannot be used to interfere with parental rights); Brown v. Brown, 914 P.2d 206 (Alaska 1996); Suster v. Arkansas Department of Human Services, 314 Ark. 92, 858 S.W.2d 122 (1993) (grandparent visitation cannot unconstitutionally infringe upon parents’ liberty interests); Herndon v. Tuhey, 857 S.W.2d 203 (Mo. 1993) (grandparent visitation statute must be read with constitutional considerations in mind, and certain restraints on grandparent visitation must therefore be put in place); Fisher v. Gaydon, 477 S.E.2d 251 (North Carolina Ct. App. 1996)
(grandparent cannot petition for visitation in intact family which includes mother living with out of wedlock child or parent living with child after divorce); Queen v. Henson, 993 P.2d 129 (Okla. Ct. App. 1999) (consistent with constitutional principles, there can be no grandparent visitation without a showing of harm to the child); Tope v. Kaminski, 793 S.W.2d 315 (Tex. Ct. App. 1990)
(grandparent visitation is limited by its terms); Williams v. Williams, 24 Va. App. 778, 485 S.E.2d 651 (1997)
(in order to obtain grandparent visitation, grandparents must show breakup of nuclear family and that child will suffer harm without visitation); State ex rel. David Allen B. v. Sommerville, 194 W. Va. 86, 459 S.E.2d 363 (1995) . See generally Joan Bohl, Grandparent Visitation Law Grown Up: The Trend Toward Awarding Visitation Only When the Child Would Otherwise Suffer Harm, 48
Drake L. Rev. 279 (2000); Joan Bohl, Brave New Statutes: Grandparent Visitation Statutes as Unconstitutional Invasions of Family Life and Invalid Exercises of State Power, 3
Geo. Mason U. Civ. Rts. L.J. 271 (1993).

Carolyn S. Zisser is a board certified marital and family lawyer in Jacksonville. Her practice is devoted exclusively to matters relating to marital and family law, and she has extensive experience handling complex equitable distribution, support, and child custody cases.

This column is submitted on behalf of the Family Law Section, Norman D. Levin, chair, and Peter L. Gladstone, editor.

Family Law