Von Eiff v. Azicri

• Decision Date: 12 November 1998
• Docket Number: No. 91647,91647
• Citation: 720 So.2d 510
• Parties: Philip Goode VON EIFF and Cheryl Goode Von Eiff, Petitioners, v. Leonor AZICRI and Roberto Azicri, Respondents.
• Court: Florida Supreme Court

Page 510

720 So.2d 510

Philip Goode VON EIFF and Cheryl Goode Von Eiff, Petitioners, v. Leonor AZICRI and Roberto Azicri, Respondents.

No. 91647.

Supreme Court of Florida.

Nov. 12, 1998.

Robert S. Geiger, Jonathan A. Heller, Avi J. Litwin and Elida Landry of Geiger, Kasdin, Heller, Kuperstein, Chames & Weil, P.A., Miami, for Petitioners.

Brenda B. Shapiro, Miami, and Allison Doliner Hockman, Coral Gables, for Respondents.

Andrew H. Kayton, Miami, for American Civil Liberties Union Foundation of Florida, Inc., Amicus Curiae.

PARIENTE, Justice.

We have for review a decision certifying the following question to be 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?

Von Eiff v. Azicri, 699 So.2d 772, 778 (Fla. 3d DCA 1997). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. We rephrase the certified question as follows:

IS SECTION 752.01(1)(a), FLORIDA STATUTES (1993), FACIALLY UNCONSTITUTIONAL BECAUSE IT IMPERMISSIBLY INFRINGES ON PRIVACY RIGHTS PROTECTED BY ARTICLE I,

SECTION 23 OF THE FLORIDA CONSTITUTION?

As rephrased, we answer the certified question in the affirmative and quash the decision below. As we did in the similar case of Beagle v. Beagle, 678 So.2d 1271, 1272 (Fla.1996), we emphasize that

our determination today is not a comment on the desirability of interaction between grandparents and their grandchildren. We focus exclusively on whether it is proper for the government, in the absence of a demonstrated harm to the child, to force such interaction against the express wishes of at least one parent....

BACKGROUND

At common law, grandparents had no legal right to visit their grandchildren if the child's parents opposed the visitation. See Parker v. Gates, 89 Fla. 76, 103 So. 126 (1925); Olds v. Olds, 356 N.W.2d 571, 572-73 (Iowa 1984); see also Theresa H. Sykora, Grandparent Visitation Statutes: Are the Best Interests of the Grandparent Being Met Before Those of the Child?, 30 Fam. L.Q. 753, 758 (1996). Thus, any order that granted visitation rights to a nonparent, including a grandparent, was deemed "unjustified" and "unenforceable." See Sheehy v. Sheehy, 325 So.2d 12, 12 (Fla. 2d DCA 1975); Lee v. Kepler, 197 So.2d 570, 573 (Fla. 3rd DCA 1967).

In Florida, the first grandparent visitation legislation was enacted in 1978, in the context of dissolution of marriage actions. See Beagle, 678 So.2d at 1272-73. ¹ In Beagle, we outlined the historical development of the statutes concerning grandparent visitation in Florida, which culminated in the enactment of chapter 752. Id.

Chapter 752, entitled "Grandparental Visitation Rights," provides grandparents ² with a freestanding cause of action, unconnected with a dissolution of marriage, for visitation rights with their minor grandchildren:

(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 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 s. 742.091; or

(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.

§ 752.01(1)(a)-(e), Fla. Stat. (1993) (emphasis supplied).

In Beagle, this Court concluded that subsection 752.01(1)(e) was facially unconstitutional because "the challenged paragraph infringes upon the rights of parents to raise their children free from government intervention." 672 So.2d at 1272. We find that the reasoning in Beagle compels the same conclusion as to subsection 752.01(1)(a), which mandates that the court "shall" award visitation to the grandparents when it is in the best interest of the child, if "one or both parents of the child are deceased."

FACTS

Philip and Luisa Von Eiff were married in 1990. In 1991, their daughter Kelly (child) was born. Luisa, the biological mother, died of cancer in December 1993. In July 1994, Philip remarried. His new wife, Cheryl Von Eiff, legally adopted the child several months later, in October 1994.

In December 1994, the Azicris, the child's biological maternal grandparents (grandparents), filed a petition for unsupervised visitation with the child, as authorized by subsection (1)(a), alleging that the biological father and adoptive mother (Von Eiffs) had refused reasonable visitation with the child, and that such visitation was in the child's best interests. The Von Eiffs countered that they had a fundamental privacy right to determine with whom the child associated and that subsection (1)(a) violated that right.

At a non-jury trial, the grandparents testified that they had played an active role in the first two years of the child's life, but that soon after the biological mother died they were denied unsupervised visitation with their grandchild. The Von Eiffs never refused the grandparents contact with the child, but insisted that one of them, or an acceptable third person, be present during any visit.

The grandparents offered various reasons why the arrangement was unacceptable. For example, they explained that it was painful to visit the home of their deceased daughter where Philip Von Eiff now lived with his new wife. They were also offended that the Von Eiffs would even question their right to be alone with their granddaughter. The Von Eiffs countered that, as the child's parents, they had a right to withhold or condition visitation. Philip testified to various attempts that had been made to allow the grandparents to visit the child. He and his wife ultimately decided that visitation should be supervised because of their concerns about the grandparents' demonstrated hostility towards the parents and lack of respect for their parental judgment. The trial court ruled in favor of the grandparents and ordered unsupervised visitation with the child. In so ruling, the trial court found that the Von Eiffs "are loving, nurturing, and fit parents for the minor child," but that their "substantive reasons ... for terminating all visitation or at the maximum permitting only supervised restricted visitation do not rise to the level of severity that can be regarded with credibility by this Court." The trial court determined that it was in the best interests of the child to have a relationship with her maternal grandparents restored.

The Von Eiffs appealed to the Third District, which upheld the constitutionality of subsection (1)(a). See Von Eiff, 699 So.2d at 778. The majority found that "the state has a compelling interest in protecting children after a parent has died by preserving grandparent visitation that is in the child's best interests," and that subsection (1)(a) is "narrowly tailored" to promote this compelling interest. Id. at 773. The majority distinguished Beagle, in part, by emphasizing that the Von Eiff family was no longer "intact," having been disrupted by the death of the biological mother. See id. at 775.

The majority determined that competent substantial evidence supported the trial court's finding that visitation with the grandparents was in the child's best interests. See id. at 778. However, the court reversed in part, finding that the trial court had abused its discretion by including provisions in its order "allowing the grandparents to mandate [the child's] religious development." Id. The majority also expressed "serious reservations" concerning the overall frequency of visitation. Id.

Judge Green authored a lengthy dissent. She concluded that subsection (1)(a) is facially unconstitutional under article 1, section 23 of the Florida Constitution because it does not require a showing of demonstrable harm to a child prior to the imposition of grandparental visitation. See 699 So.2d at 780-87 (Green, J., dissenting).

Since Von Eiff was decided, the Fourth and Fifth Districts have found subsection (1)(a) to be an unconstitutional infringement on a parent's right of privacy. See Russo v. Persico, 706 So.2d 933, 934 (Fla. 4th DCA 1998), review granted, 722 So.2d 193 (Fla.1998); Fitts v. Poe, 699 So.2d 348, 348 (Fla. 5th DCA 1997). The First District has aligned itself with the Von Eiff majority, certifying conflict with Fitts. See S.S. v. J.M.N., 703 So.2d 1212, 1212 (Fla. 1st DCA 1997); see also Sketo v. Brown, 559 So.2d 381 (Fla. 1st DCA 1990).

ANALYSIS

The United States Supreme Court has recognized, as one aspect of the liberty interest protected by the Due Process Clause of the Fourteenth Amendment, "a right of personal privacy," which includes "the interest in independence in making certain kinds of important decisions." Carey v. Population Servs., Int'l, 431 U.S. 678, 684, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977). While noting that "the outer limits of this aspect of privacy have not been marked," the Supreme Court found it "clear that among the decisions that an individual may make without unjustified government interference are personal decisions relating to marriage, procreation, contraception, family relationships, and child rearing and education." Id. at 684-85, 97 S.Ct. 2010 (citations omitted).

In Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), the United States Supreme Court specifically acknowledged the fundamental liberty interest of parents in the "care, custody and management" of their children. This Court has likewise on numerous occasions recognized that decisions relating...