SG v. CSG, 96-4144.
| Decision Date | 21 January 1999 |
| Docket Number | No. 96-4144.,96-4144. |
| Parties | S.G., Grandmother of I.C.C.G., a minor child, Appellant, v. C.S.G., Natural Mother of I.C.C.G., a minor child, Appellee. |
| Court | Florida District Court of Appeals |
Jeffrey A. Conner and Lyman T. Fletcher, Jacksonville, for Appellant.
Charles E. Willmott, Jacksonville, for Appellee.
S.G., the paternal grandmother of I.C.C.G., a minor child, appeals an order from a consolidated proceeding for adoption and modification of a final judgment of dissolution which placed custody of the minor child with I.C.C.G.'s natural mother, C.S.G., the appellee. Appellant argues that the trial court erred in not using a "best interest of the child" standard in making a custody decision under section 61.13(7), Florida Statutes (1995), as between a natural parent and a grandparent with whom the child had been residing in a stable relationship. We agree with the trial court that in a custody dispute under section 61.13(7) custody can be denied to the parent only when it is established that the parent has abandoned the child, that the parent is unfit, or that granting custody to the parent will be detrimental to the child. Accordingly, we affirm.
I.C.C.G. was born on October 29, 1991, and at the time of birth resided with his parents in Jacksonville in the home of S.G., his paternal grandmother. C.S.G., the natural mother was a minor when the child was born. When the child was two years old, the natural mother, then 18 years old, moved to the home of her own mother, also in Jacksonville. I.C.C.G. remained in his paternal grandmother's home, and his parents consented to S.G. becoming the child's guardian. The parents were divorced by a judgment of dissolution entered in August 1993, by which S.G. was designated as the primary residential custodian. The mother did not appear in the dissolution proceeding, but she was awarded liberal and reasonable visitation by the judgment of dissolution. The natural mother ceased her sporadic visitation with I.C.C.G. in December 1993. She then moved from Jacksonville to Columbus, Georgia with her second husband, but returned to Jacksonville in January 1994.
In December 1995, the mother filed a petition for modification seeking primary residential custody of the child and support from the natural father. S.G. answered by denying that any material, substantial changes in circumstances had occurred which would justify modification. S.G. also sought to end visitation by the natural mother, which by then had recommenced, arguing that the visitations had been traumatic for the child and caused behavioral and other problems. Later, S.G. filed a petition to adopt the minor child.
Following a hearing, the trial court denied the petition for adoption. In a thoughtful order, the trial court found that the mother acted responsibly when giving the paternal grandmother legal guardianship of the child and that the grandmother did not prove by clear and convincing evidence that the natural mother abandoned the child during the guardianship within the meaning of chapter 63, Florida Statutes. The trial court then granted modification, reasoning as follows:
[A]s difficult as it may seem to the Grandmother, the Grandmother has an extremely heavy burden to overcome to maintain custody of this minor child. The present status of the law grants superior rights to a natural parent who is not unfit or would not be a detriment to the welfare of the child.
Relying upon In re Marriage of Matzen, 600 So.2d 487 (Fla. 1st DCA 1992), the trial court ruled that custody could not be denied a natural parent in preference to a third party unless there is clear and convincing evidence that the parent abandoned the child or is, in some meaningful sense, an unfit parent, or that placing the child with the parent will be detrimental to the child's welfare. On the authority of In Re J.M.Z., 635 So.2d 134 (Fla. 1st DCA 1994), the trial court rejected the grandmother's argument that, pursuant to section 61.13(7), Florida Statutes, grandparents with custody of a child are now on equal standing with natural parents in a custody dispute. Accordingly, the trial court ordered that after a transition period custody is to be returned to the natural mother.
This case involves the question of the standard to apply in a dispute between a parent and grandparent for custody of a minor child pursuant to section 61.13(7). The appellant argues that, under this statute, the court is required to consider the parent and grandparent on equal footing and award custody based strictly on the "best interests of the child." Because of the fundamental constitutional right of natural parents "to raise their children except in cases where the child is threatened with harm," Beagle v. Beagle, 678 So.2d 1271, 1276 (Fla.1996), we agree with the trial court that in a custody dispute between a natural parent and grandparent under section 61.13(7), custody should be granted to the natural parent unless it is demonstrated that such custody will be detrimental to the child. In re Guardianship of D.A. McW., 460 So.2d 368, 369-370 (Fla. 1984).
There is no doubt that the person with whom a child lives, especially when the child is young, is a significant figure to that child.1 This would seem even more true when that custodian is a grandparent.2 Furthermore, grandparent custody, especially when such custody has been in effect for some time, is a matter with more far-reaching implications than grandparent visitation, because custody often creates a bond not forged simply by visitation.3
The Florida Supreme Court addressed the standard applicable in determining a custody dispute between a grandparent and a natural parent in In re Guardianship of D.A. McW., 460 So.2d at 369-70. In D.A. McW., a natural father of a child born out-of-wedlock appealed a custody award to the maternal grandmother. In approving the Fourth District's reversal of the custody award, 429 So.2d 699 (Fla. 4th DCA 1983), the court explained the applicable standard as follows:
Murphy v. Markham-Crawford, 665 So.2d 1093, 1094 (Fla. 1st DCA 1995); see also In re Marriage of Matzen, 600 So.2d at 488
.
Constitutional Rights of Parents
Although the holdings in D.A. McW. and its progeny were based upon "the fundamental interest of natural parents in the care, custody and management of their children," 429 So.2d at 703, and upon the "strong public policy which exists in this state in favor of the natural family unit," 460 So.2d at 370 (quoting D.A. McW., 429 So.2d at 703-704), those decisions did not express such parental rights in constitutional terms. In addressing grandparent visitation issues under section 752.01, Florida Statutes, in Beagle v. Beagle, supra,
and Von Eiff v. Von Eiff, 720 So.2d 510, 23 Fla. L. Weekly S583 (Fla. November 12, 1998), the Supreme Court has since recognized that the parents' right to raise their children has constitutional protection in both the Due Process Clause of the Fourteenth Amendment to the United States Constitution and the privacy provision of the Florida Constitution, article I, section 23.4
Beagle, 678 So.2d at 1275; Von Eiff, 720 So.2d at 514, 23 Fla. L. Weekly at S585. The court explained that in adopting the explicit constitutional right of privacy in article I, section 23, Floridians "opted for more protection from governmental intrusion" than was afforded under the federal constitution. Beagle, 678 So.2d at 1275 (quoting Winfield v. Division of Pari-Mutuel Wagering, 477 So.2d 544, 548 (Fla.1985)). Thus, "[t]he state constitutional right to privacy is much broader in scope, embraces more privacy interests, and extends more protection to those interests than its federal counterpart." Von Eiff, 720 So.2d at 514, 23 Fla. L. Weekly at S585.5
In Beagle, the court held that "the state may not intrude upon the parents' fundamental rights to raise their children except in cases where the child is threatened with harm." Beagle, 678 So.2d at 1276. Further, in analyzing a statute that infringes on this parental right, the statute was required to "survive the highest level of scrutiny," the compelling state interest standard, Von Eiff, 720 So.2d at 514, 23 Fla. L. Weekly at S585, a standard the state can satisfy "when it acts to prevent demonstrable harm to a child." Id. (). The Von Eiff court explained the policy reasons for rejecting a best interests analysis in visitation disputes involving natural parents...
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