Beagle v. BeagleBeagle v. Beagle
In this grandparent visitation case, Roy and Sharron Beagle, the paternal grandparents of a minor child, Amber Beagle, (grandparents) seek review of the trial court‘s order finding
In 1978, the Florida legislature enacted the first statutory provision related to grandparent visitation with minor grandchildren.
In 1984, the legislature repealed
In 1990,
In
minor is living with both natural parents who are still married to each other whether or not there is a broken relationship between either or both parents of the minor child and the grandparents, and either or both parents have used their parental authority to prohibit a relationship between the minor child and the grandparents. (Codified as
section 752.01(1)(e), Florida Statutes ).
It is the 1993 amendment to
Amber‘s parents (appellees) contended below and urge on appeal that this provision, which they argue grants per se visitation rights to grandparents, violates
For their part, Amber‘s paternal grandparents (appellants) note that while grandparent visitation was unknown at common law, all 50 states now have some form of legislation on the subject. Twenty-two states, including Florida, permit grandparent visitation in intact families. They argue that there exists a special bond between grandparents and grandchildren and that, in striking the statute at issue as facially unconstitutional, the trial court considered only the privacy rights of married parents, ignoring the rights of single parents, children and grandparents. They find no basis in Florida law or logic for assuming that single parents somehow do not measure up to married parents in terms of the quality of their parenting. Finally, the grandparents assert that the part of
This court has previously had occasion to consider the facial constitutionality of another
We find nothing ... that would preclude the state from passing a statute providing for reasonable visitation by a grandparent with the grandchildren upon the finding that such visitation is in the children‘s best interest. The state has a sufficiently compelling interest in the welfare of children that it can provide for the continuation of relations between children and their grandparents under reasonable terms and conditions so long as that is in the children‘s best interest. Since that is all the challenged statute purports to do, it is not facially unconstitutional.
Procedurally, in the case at hand, pursuant to
This Court finds that when no substantial harm threatens a child‘s welfare, the state lacks a sufficiently compelling justification for the infringement on the fundamental and natural rights of parents to raise their children as they see fit. Therefore, without a substantial danger of harm to the child, a court may not constitutionally impose its own subjective notion of the “best interests of the child” when an intact, nuclear family with fit parents is involved. Since subsection (e) of Florida Statute 752.01 does not provide for a finding of substantial danger of harm to the child in order for the state to intervene in an intact nuclear family with fit parents, this court finds subsection (e) of Florida Statutes 752.01 unconstitutional. Per se right to visitation by grandparents violates the parents’ right to privacy under the Florida Constitution.
We first observe that the statutory subsection in question does not establish a per se right of visitation between grandparents and grandchildren. It only permits a grandparent to petition for visitation which may be denied should the court conclude that visitation would not be in the minor grandchild‘s best interest. Mandatory criteria which the trial court must consider in making this determination are included as is mandatory mediation upon the filing of a visitation petition if parents and grandparents are at odds regarding visitation. These latter features make the statutory subsection in question different than the Tennessee statute which was interpreted in Hawk v. Hawk, 855 S.W.2d 573 (Tenn. 1993), and which case is cited in support of the trial court‘s order below.
Reduced to its essence, the parents’ primary argument which was adopted by the court below is that, to comport with
Having previously determined in Sketo, supra at p. 382 that
When we consider that the justification for Florida‘s grandparent visitation statute is the best interest of the child, it seems to us that it matters little whether the child whose interest is to be protected lives in a loving, nurturing home with both parents, a loving home headed by a working mother whose erstwhile husband has deserted the family or with a loving father devastated by a divorce not of his asking.
IS SECTION 752.01(1)(e), FLORIDA STATUTES (1993), FACIALLY UNCONSTITUTIONAL BECAUSE IT CONSTITUTES IMPERMISSIBLE STATE INTERFERENCE WITH PARENTAL RIGHTS PROTECTED BY EITHER ARTICLE I, SECTION 23, OF THE FLORIDA CONSTITUTION OR THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION?
REVERSED and REMANDED for further consistent proceedings.
BENTON, J., concurs.
WEBSTER, J., specially concurs with written opinion.
WEBSTER, Judge, specially concurring.
I agree with the majority that no logical and legally sustainable basis exists for distinguishing this case from our prior decision in Sketo v. Brown, 559 So. 2d 381 (Fla. 1st DCA 1990). Accordingly, I find myself obliged to recognize the precedential effect of that decision, and to concur in the result reached by the majority. However, I believe that Sketo was incorrectly decided. I would recede from that opinion and hold that the statute at issue here violates both
Sketo involved a challenge to
We find nothing in those cases, however, that would preclude the state from passing a statute providing for reasonable visitation by a grandparent with the grandchildren upon the finding that such visitation is in the children‘s best interest. The state has a sufficiently compelling interest in the welfare of children that it can provide for the continuation of relations between children and their grandparents under reasonable terms and conditions so long as that is in the children‘s interest. Since that is all the challenged statute purports to do, it is not facially unconstitutional.
559 So. 2d at 382. While it seems to me that this begs, rather than answers, the question posed in Sketo, I am unable to say that such reasoning need not, necessarily, lead to the same result when the statute at issue here is considered. Therefore, I find myself constrained to concur. However, for the reasons which follow, I believe that Sketo was incorrectly decided, and that we should recede from it to the extent that it requires the result reached by the majority.
[T]he concept of privacy encompasses much more than the right to control the disclosure of information about oneself. “Privacy” has been used interchangeably with the common understanding of the notion of “liberty,” and both imply a fundamental right of self-determination subject only to the state‘s compelling and overriding interest.
In re Guardianship of Browning, 568 So. 2d 4, 9-10 (Fla. 1990). This right of privacy has been implicitly recognized as extending to decisions involving family relationships and the raising and education of children. In re T.W., 551 So. 2d 1186, 1191-92 (Fla. 1989).
Even before the adoption of
The right of the parents to the custody, care and upbringing of their children is one of the most basic rights of our civilization. The emphasis upon the importance of the home unit in which children are brought up by their natural parents is one of the great humanizations of western civilization as contrasted with the ideologies of some nations where family life is not accorded primary consideration.
Because of their fundamental nature, before the state will be permitted to impinge upon any of the rights contained in the bundle protected by
The proposition that there must be a real threat to a child‘s physical, emotional or mental well-being before the state may interfere with parental decision-making is not new in this state. See, e.g., Padgett v. Department of Health and Rehabilitative Services, 577 So. 2d 565, 570 (Fla. 1991) (“compelling interest” justifying state interference in dependency context is protecting children “against the clear threat of abuse, neglect and death“). Given the fact that the nature of the interference is not different in kind pursuant to the statute at issue here from that involved in the dependency context, I fail to see why a lesser showing should be permitted to satisfy the requirement of a “compelling state interest” with regard to the former than is required for the latter.
Appellants concede that the statute in question “infringes upon a parent‘s right to privacy.” However, they argue that such intrusion “is minimal,” when weighed against “the children‘s right to know their grandparent, and the grandparent‘s interest in knowing their [sic] offspring.” In light of the fundamental nature of the parental rights that are implicated, and of the requirement that a “compelling state interest” be offered to support such an intrusion, I find this argument unpersuasive. To argue that the interference with the parents’ rights “is minimal” in such circumstances is to trivialize the importance of the parents’ role in molding the character of their children. Clearly, deciding what associations a child will be permitted to have, and what relationships are to be encouraged or discouraged, is an important part of child-raising. While most would probably agree that, generally, it is beneficial for a child to have contact with his or her grandparents, I fail to see why that means that, absent evidence of a concrete threat to a child‘s physical, emotional or mental well-being justifying state intervention, the parents should not be the ones to make that decision. If the state can trump the parents’ wishes in cases where grandparent visitation is at issue, why can it not also do so when aunts or uncles, cousins, former stepparents, or anyone claiming to have a special bond with the child, seeks similar visitation? If a “compelling state interest” sufficient to justify state interference requiring objecting parents to permit visitation between a child and grandparents can be found whenever a given court concludes that “it is in the best interest of the minor child,” why would such a finding not also be sufficient to justify state interference whenever it appeared that a child‘s life would be improved by placement with a more attentive, loving or affluent couple?
Perhaps the most forceful expression of the importance attributed to the right of parents to raise their children free from state interference is found in Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212, 31 L. Ed. 2d 551 (1972). There, the Court said:
It is plain that 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.” Kovacs v. Cooper, 336 U.S. 77, 95, 69 S. Ct. 448, 458, 93 L. Ed. 513 (1949) (Frankfurter, J., concurring).
The Court has frequently emphasized the importance of the family. The rights to conceive and to raise one‘s children have been deemed “essential,” Meyer v. Nebraska, 262 U.S. 390, 399, 43 S. Ct. 625, 626, 67 L. Ed. 1042 (1923), “basic civil rights of man,” Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S. Ct. 1110, 1113, 86 L. Ed. 1655 (1942), and “[r]ights far more precious ... than property rights,” May v. Anderson, 345 U.S. 528, 533, 73 S. Ct. 840, 843, 97 L. Ed. 1221 (1953). “It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.” Prince v. Massachusetts, 321 U.S. 158, 166, 64 S. Ct. 438, 442, 88 L. Ed. 645 (1944). The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment, Meyer v. Nebraska, supra, 262 U.S. at 399, 43 S. Ct. at 626, the Equal Protection Clause of the Fourteenth Amendment, Skinner v. Oklahoma, supra, 316 U.S. at 541, 62 S. Ct. at 1113, and the Ninth Amendment, Griswold v. Connecticut, 381 U.S. 479, 496, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965) (Goldberg, J., concurring).
See also Roberts v. United States Jaycees, 468 U.S. 609, 618-20, 104 S. Ct. 3244, 3250-51, 82 L. Ed. 2d 462 (1984) (child-raising entitled to “a substantial measure of sanctuary from unjustified interference by the State“); Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394, 71 L. Ed. 2d 599 (1982) (“natural parents” enjoy a “fundamental liberty interest ... in the care, custody, and management of their child“); Ginsberg v. New York, 390 U.S. 629, 639, 88 S. Ct. 1274, 1280, 20 L. Ed. 2d 195 (1968) (“the parents’ claim to authority in their own household to direct the rearing of their children is basic in the structure of our society“).
When government attempts to impose intrusive regulations upon the family, the usual judicial deference accorded to legislative enactments is inappropriate. Instead, such legislation will be subjected to a strict scrutiny test. E.g., Moore v. City of East Cleveland, 431 U.S. 494, 97 S. Ct. 1932, 52 L. Ed. 2d 531 (1977). Under strict scrutiny review, such a statutory intrusion “may be justified only by a ‘compelling state interest,’ ... and th[e] legislative enactment[] must be narrowly
Some years ago, in Kersey v. State, 124 So. 2d 726, 730 (Fla. 1st DCA 1960), this court said:
Particularly should it be true in this age of creeping paternalism at all levels of government in this country that individuals may confidently look to the courts to fulfill their historic role of guardians of the rights and liberties of the people, one of which rights is to rear, train, care for, and enjoy the companionship of their children, without the threat of unreasonable interference of governmental authority.
It may be true that the decision to uphold the statute at issue is but the first step, and a small one at that, down the path toward the emasculation of the fundamental right of parents to raise their children as they see fit, free from governmental interference, absent evidence of a concrete threat to the physical, emotional or mental well-being of the child. However, it is a step in the opposite direction from that in which the courts of this state are traveling when called upon to decide the constitutionality of state interference with other rights contained in the bundle protected by