Richardson v. Richardson

• Decision Date: 17 August 2000
• Docket Number: No. SC94810.,SC94810.
• Citation: 766 So.2d 1036
• Parties: Charlene RICHARDSON, Appellant, v. Adrienne RICHARDSON, Appellee.
• Court: Florida Supreme Court

766 So.2d 1036

Charlene RICHARDSON, Appellant, v. Adrienne RICHARDSON, Appellee.

No. SC94810.

Supreme Court of Florida.

August 17, 2000.

Robert R. Kimmel of the Law Offices of Kimmel & Batson, Chartered, Pensacola, Florida, for Appellant.

Adrienne E. Richardson, Zionville, North Carolina, Appellee, pro se.

PER CURIAM.

We have for review Richardson v. Richardson, 734 So.2d 1063 (Fla. 1st DCA 1999), a decision of the district court declaring invalid a state statute. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. Consistent with our recent rulings on similar issues, we affirm the district court decision and hold that section 61.13(7), Florida Statutes (1999), is facially unconstitutional in vesting custody rights in others because it violates a natural parent's fundamental right to rear his or her child.

MATERIAL FACTS

This case involves a dispute between a natural parent and a paternal grandparent over the custody of a minor child. In 1988, appellee Adrienne Richardson married Raymond Richardson. The couple bore a child, Ashleigh Richardson, on December 29, 1989. In 1994, the couple divorced and appellee was awarded custody of Ashleigh. According to the terms of the Marital Settlement Agreement, neither parent was permitted to move the child's residence beyond a one-hundred mile radius of Pensacola, Florida. The father was awarded reasonable visitation rights.

From 1992 until 1996, Ashleigh resided off and on with the appellant, Charlene Richardson, and her husband, Raymond Richardson, the child's paternal grandparents. Ashleigh lived with her grandparents four to five days out of the week and visited her mother on the weekends. Then in December of 1996, the mother took the child to North Carolina for Christmas and refused to return her to Florida. In January, 1997, the father filed a motion to modify custody on the grounds of change in circumstances. He sought custody of Ashleigh alleging the mother removed the child to North Carolina in violation of the Marital Separation Agreement and that the mother's living arrangement had subjected the child to harm.

In February 1997, the grandparents moved to intervene in the modification proceedings and petitioned for custody of the child under the provisions of section 61.13(7) which authorizes custody for grandparents if a child is "actually residing with a grandparent in a stable relationship," and the trial court granted the motion to intervene. The father subsequently withdrew his motion for custody and took the position that the grandparents should be awarded custody.¹ After a two-day trial in September, 1997, the trial court transferred custody of the child to the grandparents pursuant to the provisions of section 61.13(7).

The mother appealed the trial court's transfer order. The district court held that section 61.13(7) violated article I, section 23, of the Florida Constitution by "permitting evaluation of the grandparents' custody request solely upon a best interest [of the child] standard." Richardson, 734 So.2d at 1064 (relying on Von Eiff v. Azicri, 720 So.2d 510 (Fla.1998), and Beagle v. Beagle, 678 So.2d 1271 (Fla. 1996)). The court reasoned that section 61.13(7) suffered from the same constitutional infirmity as the grandparents' visitation statute in Von Eiff and Beagle because it invoked a best interest standard without requiring proof of a substantial threat of significant and demonstrable harm to the child as required by those decisions. See 734 So.2d at 1064.

LEGAL ARGUMENT

Section 61.13(7) states:

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.

See § 61.13(7), Fla. Stat. (1997). This section clearly gives grandparents the right to intervene in a custody dispute under chapter 61 and be granted the same legal custody rights as the natural parents, if the grandparents establish that (1) the child is actually residing with the grandparents, and (2) in a stable relationship. The mother asserts that the statute is facially unconstitutional because it gives grandparents an elevated status and a fundamental right to raise their grandchild equal to that of a parent. Further, the statute permits courts to determine which party should obtain custody of the child based solely on the "best interest of the child" standard, without first determining whether the parent is unfit or whether detriment would result to the child if custody was awarded to the parent.

The grandmother, appellant, argues that section 61.13(7) is not facially unconstitutional under the reasoning of Von Eiff and Beagle because those decisions dealt with a completely different statutory provision. Alternatively, she argues that section 61.13(7) may be saved by interpreting the statute in a way that passes constitutional muster. While we recognize the obvious good intentions of the Legislature in passing this legislation as well as the grandparent visitation legislation, we disagree with both of the grandmother's contentions.

Under our prior holdings, including Von Eiff and Beagle, it is apparent that section 61.13(7) unconstitutionally violates a natural parent's fundamental right to raise his or her child absent a compelling state justification.² In Von Eiff and Beagle the statute in question was limited to visitation rights to grandparents,³ while section 61.13(7) grants custody rights. In Von Eiff, we explained that Florida's Constitution guarantees a right to privacy and that such right includes a parent's fundamental right to rear his or her child free from governmental intrusion and control. See720 So.2d at 513. We further explained that "the state can satisfy the compelling state interest standard [only] when it acts to prevent demonstrable harm to a child." Id. at 515 (quoting Beagle, 678 So.2d at 1276). Accordingly, we held that a trial court may not intrude upon the parent-child relationship by awarding visitation rights to a grandparent without evidence of a demonstrable harm to the child. Id.; see also Beagle, 678 So.2d at 1276

.

This conclusion is also, of course, consistent with this Court's long-standing view of custody disputes between natural parents and third parties, including grandparents. As we declared in In re Guardianship of D.A. McW,

When a custody dispute is between two parents, where both are fit and have equal rights to custody, the test involves only the determination of the best interests of the child. When the custody dispute is between a natural parent and a third party, however, the test must include consideration of the right of a natural parent "to enjoy the custody, fellowship and companionship of his off-spring.... This is a rule older than the common law itself." State ex rel. Sparks v. Reeves, 97 So.2d 18, 20 (Fla.1957). In Reeves we held that in such a circumstance [sic], custody should be denied to the natural parent only when such an award will, in fact, be detrimental to the welfare of the child. We explained what would constitute detriment to the child and approved a temporary grant of custody to the grandparents because of the father's temporary inability to care for the children after the mother's death. We cautioned, however, that the father would be entitled to custody once his ability to care for the children was established. Id. at 20-21.

460 So.2d 368, 369-70 (Fla.1984). Although D.A. McW was not decided on constitutional principles, we reaffirmed there our longstanding view that the natural parent had a clear preference to custody over all others based upon the status of parenthood. Id. at 370.

The reasoning and logic of D.A. McW, Von Eiff and Beagle applies with equal, if not more compelling, force here. In effect, section 61.13(7) treats grandparents and natural parents alike by giving grandparents custody rights equal to those of a parent, and allows courts to make its custody determination between parents and grandparents based solely on the best interest of the child standard. The grant of such rights to grandparents is unconstitutional under our reasoning in Von Eiff because it also interferes with the natural parent's fundamental right to privacy in rearing one's own child, a right this Court found to exist under article I, section 23 of the Florida Constitution. See Von Eiff. Hence, we find no valid basis to distinguish the custody statute we consider here from the visitation statute we considered in Von Eiff and Beagle, except for the fact the custody statute is even more intrusive upon a parent's rights.

SAVING CONSTRUCTION

The grandmother also contends that section 61.13(7) may be saved by interpreting the provision in light of well-established case law on grandparents' rights to custody, or by adding conditional language to the statute.⁴ She relies on the First District's holding in S.G. v. C.S.G., 726 So.2d 806 (Fla. 1st DCA 1999), which rejected the argument that section 61.13(7) requires courts to place grandparents on equal footing with natural parents. Rather, the First District held there that the statute merely gives grandparents standing to seek custody of a minor child. See id. at 808; see also In re J.M.Z., 635 So.2d 134, 135 (Fla. 1st DCA 1994)

.⁵ Under this construction of the statute, even though a court determines that the grandparent has standing under section 61.13(7) to seek custody, the court may still not intervene in a parent-child relationship or determine whether custody with a grandparent is in the best interest of the child, unless it has been established that the parent abandoned the child, that the parent is unfit or that harm would result to the child if the parent were to be awarded custody. See S.G., 726 So.2d at 811 (relying on In re Guardianship of D.A. McW, 460 So.2d at 369-70); see also Murphy v....