Beagle v. Beagle

• Decision Date: 16 May 1995
• Docket Number: No. 94-337,94-337
• Citation: 654 So.2d 1260
• Parties: 20 Fla. L. Weekly D1202, 20 Fla. L. Weekly D1715 Roy Thomas BEAGLE and Sharron Whitman Beagle, Appellants, v. Dewey Keith BEAGLE and Melissa Darlene Beagle, Appellees.
• Court: Florida District Court of Appeals

Page 1260

654 So.2d 1260

20 Fla. L. Weekly D1202, 20 Fla. L. Weekly D1715

Roy Thomas BEAGLE and Sharron Whitman Beagle, Appellants, v. Dewey Keith BEAGLE and Melissa Darlene Beagle, Appellees.

No. 94-337.

District Court of Appeal of Florida,

First District.

May 16, 1995.

Rehearing Denied June 20, 1995.

Nancy N. Nowlis and Tracy Tyson, Jacksonville, for appellants.

William J. Sheppard of Sheppard and White, P.A., and Stephen H. Donohoe of Donohoe & Kendrick, Jacksonville, for appellees.

MINER, Judge.

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 section 752.01(1)(e) to be facially unconstitutional because it violates the privacy rights of Dewey and Melissa Beagle, Amber's parents, (parents) guaranteed by Article I, Section 23 of the Florida Constitution. The parents also contend that their federal constitutional rights are implicated as well. Because we conclude that the statutory section in question is not facially unconstitutional under either the state or federal constitutions, we reverse and remand for a hearing to determine whether grandparent visitation is in Amber's best interest under the facts of the case.

In 1978, the Florida legislature enacted the first statutory provision related to grandparent visitation with minor grandchildren. Section 61.13(2)(b) Florida Statutes (Supp.1978) authorized courts in dissolution proceedings to award such visitation if deemed to be in the child's best interest. However, under this section, grandparents had no standing to intervene in such proceedings to petition for visitation. During that same year, the legislature gave courts "competent to decide child custody matters" jurisdiction to award grandparent-grandchild visitation upon proper petition where one or both of the minor's parents were deceased. Again, the best interest of the minor child was the determining factor in any award of visitation. See Sec. 68.08, Fla.Stat. (Supp.1978).

In 1984, the legislature repealed section 68.08, Florida Statutes and enacted Chapter 752 entitled: "Grandparent Visitation Rights" which involved a more comprehensive treatment of the issue. If in the minor's best interest, grandparents could now petition for visitation in the event of death, divorce or desertion--death of either of the minor's parents, divorce of the minor's parents or desertion by either parent. Additionally, a grandparent petition for visitation was disallowed if the grandchild was placed for adoption unless the adopting person was a stepparent.

In 1990, section 6 of Ch. 90-273, Laws of Florida, added subsection (2) to section 752.01 which subsection set forth certain criteria which the court was required to consider in determining whether grandparent visitation would be in the "best interest of the minor child". Additionally, in that same year, the legislature adopted section 752.015, Florida Statutes requiring mediation in the event that families were unable to resolve differences related to grandparent visitation once a petition seeking such visitation was filed.

In Ch. 93-279, Laws of Florida, effective May 15, 1993, the legislature again amended section 752.01 to provide that upon a finding that such would be in the best interest of the minor child, the court, upon the filing of a proper petition, should grant grandparent visitation in those instances where 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. (Codified as section 752.01(1)(e), Florida Statutes).

It is the 1993 amendment to section 752.01 that is the subject of the instant appeal.

Amber's parents (appellees) contended below and urge on appeal that this provision, which they argue grants per se visitation rights to grandparents, violates Article I, Section 23 (the so-called right of privacy amendment) in that there is no compelling state interest in granting even temporary visitation rights to grandparents of a child in an intact, nuclear family which would justify state interference into the privacy rights of parents in the absence of proof of substantial harm which threatens the welfare of a grandchild.

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 section 752.01 challenged here does nothing more than expand the rights of children in intact families and place them on a par with children in non-intact families and, further, that taken as a whole, section 752.01 gives all parents across-the-board fair treatment regarding appropriateness of grandparent visitation and invades the privacy rights of parents in the least intrusive manner.

This court has previously had occasion to consider the facial constitutionality of another portion of the contested statute. In Sketo v. Brown, 559 So.2d 381 (Fla. 1st DCA 1990), Mrs. Brown, the paternal grandmother, sought visitation with her two grandchildren, the issue of the marriage of her deceased son, Ben, and Mrs. Sketo. For whatever reason or reasons, the relationship between Mrs. Brown and Mrs. Sketo progressively deteriorated and, in time, Mrs. Brown, under section 752.01(1)(a) petitioned for visitation. The trial court granted a rather extensive visitation schedule ¹ and Mrs. Sketo appealed. Among other points raised on appeal, she contended that section 752.01(1)(a) was facially unconstitutional because it violated her privacy rights under Article I, Section 23 of the Florida Constitution. In rejecting this argument, the court held:

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 Section 752.01(1)(e), the grandparents filed a petition seeking visitation with Amber. Appellees filed a motion to dismiss the petition, which petition was subsequently dismissed upon a finding that the statutory provision under which the petition was filed unconstitutionally violated the parents right of privacy. The order of dismissal concluded:

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 Article I, Section 23 of the Florida Constitution, an order granting grandchild-grandparent visitation over the objection of parents who are married to each other and living together must contain a finding that the minor child would be substantially harmed if visitation was not awarded (emphasis supplied). Presumably, the petitioning grandparents would bear the burden of proving this negative. We cannot agree. We construe the statute to require only that, before visitation can be ordered over parental objection, grandparents seeking visitation (1) must allege and establish that "either or both" parents have used their parental authority to prohibit a relationship between the child or children involved and themselves and (2) that...