Von Eiff v. AzicriVon Eiff v. Azicri
Appellants, Philip and Cheryl Von Eiff, contend that the trial court abused its discretion by granting visitation to appellees, Leonor and Roberto Azicri (“grandparents“), the maternal grandparents of Philip‘s biological daughter. The appellants additionally claim that the visitation order is too broad, not in the best interests of the child, and that the underlying grandparent visitation statute is unconstitutional. We find the relevant statutory provision is constitutional and in the best interests of the child, but reverse and remand the order to reconsider the extent and frequency of visitation.
I
Kelly Von Eiff was born to Phillip and Luisa Von Eiff on March 14, 1991. Kelly‘s natural mother, Luisa, died of cancer in December of 1993. Two months later, Cheryl Goode moved in with Philip and Kelly. Cheryl eventually married Philip, hereafter collectively referred to as “parents“, and adopted Kelly in October of 1994. Currently, Cheryl and Philip are in the process of a divorce and Kelly is living with her adoptive mother Cheryl.
Prior to Luisa‘s death, the grandparents frequently saw Kelly and got along well with Philip. However, this relationship deteriorated after Cheryl moved in with Philip. The grandparents’ visits with Kelly were reduced, and ceased altogether after the adoption. In response, the grandparents filed a petition to compel visitation under
After an unsuccessful mediation, the parties went to trial. Trial testimony revealed, and the trial court found, that limited grandparent visitation would be in Kelly‘s best interests. The trial court‘s order allowed the grandparents to have parentally supervised Friday night dinners with Kelly for eight weeks. Additionally, after the eight week introduction, Kelly would spend the night on alternating weekends with the grandparents, with parental supervision at the option of the grandparents. Lastly, the order also provided that Kelly would spend religious holidays with her grandparents.
II
We first address the constitutionality of
Florida‘s grandparent visitation statute,
(1) The court shall, upon petition filed by a grandparent of a minor child, award reasonable rights of visitation to the grandparent with respect to the child when it is in the best interest of the minor child if:
(a) One or both the parents of the child are deceased;
(b) The marriage of the parents of the child has been dissolved;
(c) A parent of the child has deserted the child;
(d) The minor child was born out of wedlock and not later determined to be a child born within wedlock as provided in
§ 742.091 ; or(e) The minor child 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.
We stress that this case solely involves section (1)(a) of the statute where one or both of the parents are deceased. Under these circumstances, a court may award reasonable visitation rights to a grandparent only if visitation is in the best interests of the child. Factors utilized by the court in making such a determination include: the willingness of the grandparents to foster a close relationship between the child and the parents, the length and quality of any prior relationship between the grandparents and the child, the preferences of the child, and the mental and physical health of the grandparents and the child.1
In examining the constitutionality of
While we recognize the vital importance of the parental right to make childrearing decisions, well-established precedent clearly provides that the rights and concerns of the child must ultimately control.2 See State ex rel. Sparks v. Reeves, 97 So.2d 18 (Fla.1957). The critical question then becomes: can it be in a child‘s best interests to permit grandparent visitation when one or both of the parents is deceased?
The Florida Supreme Court addressed grandparent visitation in Beagle v. Beagle, 678 So.2d 1271 (Fla.1996). The Court held that another section,
This makes sense because the purpose behind requiring demonstrable harm no longer applies in the absence of an intact family situation. Courts are rightfully reluctant to interfere with the sheltered structure of an intact family because of the parent‘s fundamental right to raise their children. Thus logically the only cases holding provisions of visitation statutes unconstitutional deal solely with intact families.5 See Beagle, 678 So.2d at 1271; Brooks, 454 S.E.2d at 769; Hawk, 855 S.W.2d at 573; Williams, 485 S.E.2d at 651.
However, under circumstances where families have been disrupted by death or divorce, the intact family is already compromised and the focus of the analysis shifts to the best interests of the child. See McAlister v. Shaver, 633 So.2d 494 (Fla. 5th DCA 1994)(discontinuity of parents’ relationship allows the court to determine visitation or custody based solely on the child‘s best interests). In these situations, the state is historically empowered to protect the interests of those injured by the disruption.6 See McRae v. McRae, 52 So.2d 908 (Fla.1951)(courts in dissolution proceedings have the inherent power to protect children and to do all things necessary for the administration of justice). To require an explicit finding of demonstrable harm under such circumstances would be superfluous.
The constitutionality of
Children benefit by exposure to an essential link with the past that provides them with a sense of family identity. See Christine David-Galbraith, Grandma, Grandpa, Where Are You?, 3 Elder L.J. 143 (1995). Children also benefit because their grandparents can provide an objective eye on events at home (i.e., calling attention to abuse) and offer a place of sanctuary. Additionally, research reveals that children in these relationships gain a respect for the elderly, are more secure, and are less likely to commit suicide or use drugs. Id. at 143.
At no time are the fruits of this relationship more beneficial then when a child‘s world is turned upside down by the death of a parent. Death centers a child in an emotional maelstrom threatening emotional development.8 In these situations, a child needs the stability that grandparents can provide.9
Moreover, children can become innocent pawns in power struggles by their loved ones when a family is disrupted. See Cochran v. Cochran, 263 So.2d 292 (Fla. 2d DCA 1972). Allowing a parent without restraint to interfere with beneficial visitation in circumstances of death may exacerbate emotional trauma precisely when the child is most vulnerable. See Preston v. Mercieri, 133 N.H. 36, 573 A.2d 128 (1990)(abrupt termination of a meaningful relationship between the child and his grandparents would be cruel and inhumane after a parent has died).
This case provides the perfect example of a child placed in emotional jeopardy. Here, Kelly‘s natural mother died, and her father is divorcing her adoptive mother. Kelly, who now lives with her adoptive mother, is completely cut off from the beneficial, loving relationship she knew with her grandparents. A relationship her natural mother encouraged. Unlike united opposition in an intact family, this is not a case where the state is called upon to impose visitation over parental objections. Rather, this is a case where the state acts to insure the continuity of visitation already encouraged by a deceased parent.10
In Sketo v. Brown, 559 So.2d 381 (Fla. 1st DCA 1990), the First District faced a factually similar situation. There, the father died and the paternal grandparents sought visitation rights after the relationship with the mother deteriorated. The mother contested visitation on the grounds that this interfered
We agree with Sketo. A court cannot blindly adhere to the right of privacy when this would be detrimental to a child‘s best interests. See In re Guardianship of D.A. McW., 429 So.2d 699 (Fla. 4th DCA 1983), approved, 460 So.2d 368 (Fla.1984)(grandparent visitation allowed where abrupt termination would be detrimental to a child‘s welfare). The state has a compelling interest, not in mandating how parents should raise their children, but to insure that a child‘s needs are not overlooked in these difficult circumstances. By preserving beneficial grandparent visitation rights after a parent has died,
Moreover,
In conclusion,
III
Having determined that
Testimony at trial revealed that, because people close to Kelly have constantly disappeared from her life, she needs the stability that her grandparents would provide. Additional evidence also showed that Kelly has a loving relationship with her grandparents
However, while we agree with that part of the trial court‘s order finding visitation proper, we find under these circumstances that the order was overly broad. Of particular concern are the provisions allowing the grandparents to mandate Kelly‘s religious development. The visitation order allows the grandparents extended visitation every other Friday evening for Sabbath dinner, in addition to numerous specific religious holidays. There is a wide gulf between simple visitation and religious tutelage. One of the most basic rights in determining the care and upbringing of a child is the teaching of moral standards and religious beliefs. See Bellotti v. Baird, 443 U.S. at 622, 99 S.Ct. at 3035, 61 L.Ed.2d at 797. The trial court abused its discretion by intruding too far into the parent‘s domain and should not have superseded the parents’ objections as to how and what specific type of religious upbringing Kelly should have.
Additionally, we express severe reservations concerning whether the frequent dinners and visits are warranted when the lower court found the parents to be fit. Here, testimony revealed that frequent visits would be destructive to Kelly‘s normal pattern of living. Consequently, under these circumstances we find that the broad scope of the visitation order runs contrary to Kelly‘s best interests, and must be reversed. See Sketo, 559 So.2d at 381 (extensive visitation unreasonable and not in minor child‘s best interest); Fisher v. Fisher, 390 So.2d 142 (Fla. 3d DCA 1980)(visitation to grandparents upheld but order facilitating visitation by forbidding parent to remove children from Broward County reversed).
IV
In conclusion, finding that
Because of the important and sensitive family law issues involved, we certify the following question to the Florida Supreme Court as one of great public importance:
MAY THE STATE CONSTITUTIONALLY ALLOW REASONABLE GRANDPARENT VISITATION WHERE ONE OR BOTH PARENTS OF A CHILD ARE DECEASED AND VISITATION IS DETERMINED TO BE IN THE BEST INTERESTS OF THE CHILD?
Affirmed in part; reversed in part and remanded; question certified.
SCHWARTZ, C.J., concurs.
GREEN, Judge (dissenting).
I respectfully dissent. I believe that the order under review should be reversed in toto and this case dismissed upon the grounds that the appellees/grandparents were entitled to no relief under
I
The majority has characterized this case as “[u]nlike united opposition in an intact family, this is not a case where the state is being called upon to impose visitation over parental objections.” Majority op. at 776. Rather,
When the grandparents commenced this proceeding on December 15, 1994 for unsupervised visitation rights, Kelly was indeed living in an intact family with two parents; her natural father and adopted stepmother. Both of her parents were united in their opposition to Kelly‘s unsupervised visitation with the grandparents. At some point during the proceedings below, Kelly‘s parents separated13 and remained separated up to the point when the lower court rendered its order. Despite their separation, Kelly‘s parents remained and remain united in their opposition to Kelly‘s unsupervised visitation with the grandparents. The lower court awarded, among other things, Kelly‘s unsupervised visitation with the grandparents over her parents’ objections pursuant to
The Court shall, upon petition filed by a grandparent of a minor child, award reasonable rights of visitation to the grandparent with respect to the child when it is in the best interest of the minor child if:
(a) One or both parents of the child are deceased;
From the plain language of this statute, no grandparents can be conferred visitation rights under this subsection where a child has two living parents. Significantly, the legislature did not limit “parents” in this subsection to mean only natural parents as it did in
The majority states (indeed stresses) no less than three times that this case solely involved grandparental visitation in the context of one deceased parent. See Majority op. at 774, 774, and 776. Such an astonishing statement ignores and denies the existence of Kelly‘s adopted mother with whom Kelly now actually resides. Although not expressly stated, the clear implication of the majority‘s characterization of this case is that the rights and childrearing decisions of Kelly‘s adoptive mother either do not exist or, if they do exist, are subservient to the previous decisions made by Kelly‘s deceased natural mother. This, of course, is wholly at odds with the longstanding law and sound policy of this state that adopted parents be accorded the same legal rights and constitutional protections in parenting decisions as natural parents. See
The legal ramification of Kelly‘s adoption by her stepmother is that for all legal purposes and proceedings, Kelly is no longer the child of a deceased parent. See
II
Although I believe that this case can and should be disposed of solely on the grounds that the grandparents were entitled to no relief under
At the outset, I point out that I fully concur with the sentiment expressed by our state supreme court in Beagle, that it is not appropriate for the judiciary to comment on the general wisdom or desirability of maintaining inter-generational relationships in a constitutional analysis. See Beagle, 678 So.2d at 1277; see also Brooks, 454 S.E.2d at 773-74 (the question of whether it might be “better” or “desirable” for a child to maintain contact with a grandparent is irrelevant to constitutional analysis). Consequently, I shall refrain from interjecting any opinion as to the need for maintaining the grandparent/grandchild relationship into this constitutional analysis.
A. RIGHT OF PRIVACY UNDER FLORIDA‘S CONSTITUTION
On November 4, 1980, the citizens of this state voted to amend the Florida Constitution to include
The citizens of Florida opted for more protection from governmental intrusion when they approved [A]rticle I, [S]ection 23, of the Florida Constitution. This amendment is an independent, freestanding constitutional provision which declares the fundamental right to privacy. Article I, section 23, was intentionally phrased in strong terms. The drafters of the amendment rejected the use of the words “unreasonable” or “unwarranted” before the phrase “governmental intrusion” in order to make the privacy right as strong as possible. Since the people of this state exercised their prerogative and enacted an amendment to the Florida Constitution which expressly and succinctly provides for a strong right of privacy not found in the United States Constitution, it can only be concluded that the right is much broader in scope than that of the Federal Constitution.
In re T.W., 551 So.2d 1186, 1191-92 (Fla. 1989) (quoting Winfield, 477 So.2d at 548). The right of privacy guaranteed by
In the context of the parent/child relationship, it should be pointed out that even prior to the enactment of
While according to the trial Judge a broad judicial discretion in the matter we nevertheless cannot lose sight of the basic proposition that a parent has a natural God-given legal right to enjoy the custody, fellowship and companionship of his offspring. This is a rule older than the common law itself and one which had its inception when Adam and Eve gave birth to Cain in the Garden of Eden. In cases such as this one the only limitation on this rule of parental privilege is that as between the parent and the child the ultimate welfare of the child itself must be controlling. (citations omitted).
In re Guardianship of D.A., McW., 429 So.2d 699, 702 (Fla. 4th DCA 1983) (quoting State ex rel. Sparks v. Reeves, 97 So.2d 18, 20 (Fla.1957)). Thus, the enactment of
Initially then, a determination must be made as to whether parents have a reasonable expectation of privacy in their decision to deny the grandparents access to their children. Although no case to date has expressly so stated, it appears to be an unassailable proposition that otherwise fit parents, such as the appellants who have neither abused, neglected, or abandoned their child, have a reasonable expectation that the state will not interfere with their decision to exclude or limit the grandparents’ visitation with their child.18 Indeed, even the majority apparently does not take exception with this basic proposition. Consequently, the critical issue in this analysis is whether absent any showing of harm to the child, the “best interest” standard is a compelling reason for the state to override any fit parent‘s decision to limit (or not) grandparental visitation, regardless of whether the family is intact or not. Contrary to the majority‘s conclusion, I do not believe that it is.
Florida is one of only five states which has an explicit right of privacy provision in its constitution. In the majority opinion, it is pointed out that most of the state courts which have considered the constitutionality of their respective grandparent statutes (i.e., Connecticut, Indiana, Kansas, Kentucky and Wyoming), have found such statutes to be constitutional. See Majority op. at 774 n. 1. What is not pointed out in the majority opinion, however, is the fact that none of the constitutions in those states have explicit privacy provisions. Thus, because Floridians have opted for more privacy protections than the citizens in those jurisdictions, the fact that their grandparent statutes have been found constitutional simply cannot carry any weight in Florida. Moreover, of the four other states which do have express privacy provisions in their constitutions (i.e., Alaska, California, Hawaii, and Montana)19, not one of these jurisdictions to date has found the “best interest of the child” standard to be a compelling state interest.20
I believe that well-established precedent clearly supports the concept that any fit parent
As I understand the thrust of the majority‘s analysis, the state can: (1) enact any regulatory measure deemed to be in the child‘s best interest,21 and (2) enforce the same over parental objections as long as the child‘s family is not intact. If the majority‘s reasoning were correct, then the state could not constitutionally enforce its curfew laws, child restraint seat laws, inoculation laws, school attendance laws, etc. against intact families who otherwise opposed the same. Contrary to the majority‘s position, the state‘s only compelling interest in these areas is that harm (whether physical or emotional) not befall the child. The state‘s compelling interest has nothing to do with the parent or child‘s family status.
Indeed, after the enactment of the privacy provision, one of the more telling decisions to recognize a parent‘s fundamental decision-making right, outside of the intact family context, was In re T.W. There, the supreme court held that a statute requiring an unmarried pregnant minor to obtain parental consent or judicial permission before terminating her pregnancy from conception to birth unconstitutionally infringed upon the minor parent‘s right to privacy under
We ... adopt the end of the first trimester as the time at which the state‘s interest in maternal health becomes compelling under Florida law because it is clear that prior to this point no interest in maternal health could be served by significantly restricting the manner in which abortions are performed by qualified doctors, whereas after this point the matter becomes a genuine concern.
In re T.W., 551 So.2d at 1193. The significance of this decision to the issue before us is the state supreme court‘s recognition of the fact that the state‘s only compelling interest in these minor maternal parents was in their health; not their “well-being” or “best interests” in general.
If In re T.W. was not enough, any lingering doubts about the state‘s compelling interest in this area were most assuredly dispelled in the supreme court‘s decision in Beagle. There, in response to the specific certified
Despite the supreme court‘s pronouncement in Beagle and its prior decisions regarding the state‘s compelling reasons in this arena, the majority has apparently decided to embrace and adopt the first district‘s holding in Sketo which found
In summation, I am not at all unsympathetic to the laudable legislative motives for the enactment of
Unfortunately, I cannot join in the majority‘s question as certified because I do not believe it factually or adequately states the true issue that has been presented to us. In my view, the supreme court‘s ultimate decision in this case will necessarily be dispositive of all of the remaining provisions of
ARE SECTIONS 752.01(1)(A)-(D), FLORIDA STATUTES (1995), FACIALLY UNCONSTITUTIONAL BECAUSE THEY CONSTITUTE 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?
B. RIGHT OF PRIVACY UNDER THE DUE PROCESS CLAUSE
Although I believe that the constitutionality of
The notion that there is a right of privacy or certain spheres of personal liberty into which the government may not intrude without strong justification, although not expressly stated in the federal constitution, finds its genesis in the
Thus, in Meyer, the Court struck down as unconstitutional a state statute which prohibited the teaching of any language other than English to children before the ninth grade. The Court declared generally that the liberty interest guaranteed by the
No emergency has arisen which renders knowledge by a child of some language other than English so clearly harmful as to justify its inhibition with the consequent infringement of rights long freely enjoyed.
Citing to Meyer, the Court subsequently said in Pierce that a state statute requiring all children to attend public schools “unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control,” absent a showing by the state that a private education was inherently harmful. See Pierce, 268 U.S. at 534-35, 45 S.Ct. at 573.
The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the state; those who nurture him [or her] and direct his [or her] destiny have the right, coupled with the high duty, to recognize and prepare him [or her] for additional obligations.
In Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944), the Court recognized that the state as parens patriae could only intrude into parental decisions when the safety of children so required. There, the aunt and legal guardian of a minor appealed her conviction for violating the state‘s child labor laws, which prohibited, among other things, minors from selling newspapers, magazines or periodicals on any street or public place. The child‘s aunt, a Jehovah‘s Witness had permitted her minor niece to accompany her to a public street one evening to sell religious magazines. The aunt argued that the tenets of her family‘s faith dictated that they distribute religious
Later, however, in Yoder, the Court held that the First and Fourteenth Amendments precluded the state from compelling Amish parents to send their children to high school, in derogation of the parents’ religious beliefs. The Court rejected the state‘s all-encompassing parens patriae interest in the universal compulsory high school education for all children where there was no showing of harm to Amish children in their unique lifestyle. Distinguishing this case from Prince, the Court noted that:
[A]ccommodating the religious objections of the Amish by forgoing one, or at most two, additional years of compulsory education will not impair the physical or mental health of the child, or result in an inability to be self-supporting or to discharge the duties and responsibilities of citizenship, or in any other way materially detract from the welfare of society.
Yoder, 406 U.S. at 234, 92 S.Ct. at 1542.
The clear recurring theme in these cases is that under the
[T]o allow grandparents to receive visitation with their grandchildren because the court determines that the child‘s development will be “better because of it” is to set precedent which places in the courts the authority to direct the development of children; it gives to the state what is best reserved for the parents.34
Still another has aptly pointed out that:
Even assuming that the parent makes a mistake in denying the child the right to see the grandparent, the fundamental right of parents to make decisions concerning their children must include the right to make wrong decisions. For the state to delegate to the parents the authority to raise the child as the parents see fit, except when the state thinks another choice would be better, is to give the parents no authority at all.35
Thus, in the absence of any requirement of a showing of demonstrable harm to a child as a result of the deprivation of grandparental visitation, I believe that
III
For all of the foregoing reasons, I believe that
Notes
By contrast, only a few states find grandparent visitation unconstitutional and have done so solely under circumstances involving an intact family. See Brooks v. Parkerson, 265 Ga. 189, 454 S.E.2d 769 (Ga.), cert. denied, ___ U.S. ___, 116 S.Ct. 377, 133 L.Ed.2d 301 (1995); Hawk v. Hawk, 855 S.W.2d 573 (Tenn.1993); Williams v. Williams, 24 Va.App. 778, 485 S.E.2d 651 (1997). Interestingly, the Tennessee Supreme Court in Hawk noted that because parents in a disrupted family might be less inclined to allow visitation with their former in-laws, the state had a stronger argument for visitation to protect the child when the nuclear family was destroyed. Hawk, 855 S.W.2d at 580.
(e) The 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. (emphasis added).
(1) The court shall, upon petition filed by a grandparent of a minor child, award reasonable rights of visitation to the grandparent with respect to the child when it is in the best interest of the minor child if:
* * * * * *
(e) The 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.
It disregards the superiority of parental rights and treats the dispute as one between persons of equal rights with respect to the children. According to the Sketo court, any regulation asserting the welfare of children as its touchstone need only be reasonable, rather than serving a compelling state interest. If this assertion were sufficient to carry the state‘s burden, the Florida Supreme Court would not have struck down the parental consent law in T.W., in which the state attempted to justify its law by asserting a compelling interest in the protection of immature minors.
See Minerva, supra note 1, at 551.
(1) The court shall, upon petition filed by a grandparent of a minor child, award reasonable rights of visitation to the grandparent with respect to the child when it is in the best interest of the minor child if:
(e) The 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.
(a) One or both parents of the child are deceased;
(b) The marriage of the parents of the child has been dissolved;
(c) A parent of the child has deserted the child; [or]
(d) The minor child was born out of wedlock and not later determined to be a child born within wedlock as provided in s. 742.091....