Von Eiff v. Azicri, No. 96-3273

CourtCourt of Appeal of Florida (US)
Writing for the CourtBefore SCHWARTZ; GERSTEN; SCHWARTZ; GREEN
Citation699 So.2d 772
Docket NumberNo. 96-3273
Decision Date17 September 1997
Parties22 Fla. L. Weekly D2176 Philip Goode VON EIFF and Cheryl Goode Von Eiff, Appellants, v. Leonor AZICRI and Roberto Azicri, Appellees.

Page 772

699 So.2d 772
22 Fla. L. Weekly D2176
Philip Goode VON EIFF and Cheryl Goode Von Eiff, Appellants,
v.
Leonor AZICRI and Roberto Azicri, Appellees.
No. 96-3273.
District Court of Appeal of Florida,
Third District.
Sept. 17, 1997.

Geiger, Kasdin, Heller, Kuperstein, Chames & Weil, and Robert Geiger and Johnathan A. Heller, Miami, for appellants.

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Brenda B. Shapiro, Miami, and Robin B. LeBlanc, Aventura, for appellees.

Before SCHWARTZ, C.J., and GERSTEN and GREEN, JJ.

GERSTEN, Judge.

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 section 752.01(1)(a), Florida Statutes (1995).

Section 752.01(1)(a) provides for reasonable grandparent visitation rights where one or both parents of a child are deceased, and where such visitation is found to be in the child's best interests. Philip and Cheryl opposed the petition arguing that visitation was not in Kelly's best interests, and that the statute unconstitutionally infringed on their parental rights.

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 section 752.01(1)(a). Simply, 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. Because section 752.01(1)(a) is narrowly tailored toward promoting this compelling interest, we find the provision constitutional.

Florida's grandparent visitation statute, section 752.01(1), Florida Statutes (1995), provides:

(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

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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 section 752.01(1)(a), we recognize the potential conflict between grandparent visitation rights and a parent's constitutional privacy rights in directing the upbringing and education of their children without undue government interference. See Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925). However, this rule of parental privilege is not absolute, and yields where the state shows compelling reasons to promote the best interests of the child. See Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972); Padgett v. Dep't of Health and Rehabilitative Services, 577 So.2d 565 (Fla.1991); Winfield v. Division of Pari-Mutuel Wagering, 477 So.2d 544 (Fla.1985). For example, case law has established the state's compelling interest in protecting children from actual harm and the threat of harm. See Jones v. State, 640 So.2d 1084 (Fla.1994). The state also has a compelling interest in protecting children from emotional harm. See Nelson v. Nelson, 433 So.2d 1015 (Fla. 3d DCA 1983). Accordingly, the state can require that parents enroll their children in school, that they adequately feed them, clothe them, inoculate them, use child restraints in vehicles, and house them during curfews. See Bellotti v. Baird, 443 U.S. 622, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979).

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, section 752.01(1)(e) of the statute, unconstitutionally infringed on the privacy rights of the parents because it failed to require a showing of harm to the child who was living in an intact family.

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Yet the Florida Supreme Court carefully limited its unconstitutionality finding to the "intact family" section of the statute. The Court emphasized that the "inadequacy of the best interests test in this limited circumstance does not change or modify existing principles regarding the use of that test in other family law concepts." Beagle, 678 So.2d at 1272. The Court repeatedly emphasized that its decision requiring a showing of harm in the context of an intact family did not change any other application of the best interests test. 3 Beagle, 678 So.2d at 1277. Hence, it is manifest that the Court did not intend for the demonstrable harm requirement to extend to situations, such as the provision at issue here, which do not involve an intact family. 4

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 section 752.01(1)(a) must therefore be determined based upon a "best interests" analysis. While this is a determination that must be made on a case by case basis, we recognize the important interest in a child's relationship with his or her grandparents. Exposure to grandparents generally provides tremendous benefits

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to the health and welfare of children. 7 See Ramey v. Thomas, 483 So.2d 747, 748 (Fla. 5th DCA 1986)(child's welfare is promoted in most cases by having grandparents, rather than by not having them).

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...

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7 practice notes
  • Von Eiff v. Azicri, No. 91647
    • United States
    • United States State Supreme Court of Florida
    • 12 Noviembre 1998
    ...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 IS SECTION 752.01(1)(a......
  • Visitation of Z.E.R., In re, No. 98-0819
    • United States
    • Court of Appeals of Wisconsin
    • 11 Marzo 1999
    ...legal custody would have decision-making authority. 4 T.B. cites to Sketo v. Brown, 559 So.2d 381 (Fla.App.1990), Von Eiff v. Azicri, 699 So.2d 772 (Fla.App.1997), Herndon v. Tuhey, 857 S.W.2d 203 (Mo.1993), Komosa v. Komosa, 939 S.W.2d 479 (Mo.App.1997), Peterson v. Peterson, 559 N.W.2d 82......
  • Williams v. Spears, No. 98-926
    • United States
    • Court of Appeal of Florida (US)
    • 7 Octubre 1998
    ...In Von Eiff v. Azicri, the Third District upheld the constitutionality of court-ordered visitation in the case of a deceased parent. 699 So.2d 772 (Fla. 3d DCA 1997), review granted, No. 91,647, --- So.2d ----, 23 Fla. L. Weekly S583 (Fla. Mar. 24, 1998). The court in Von Eiff stressed that......
  • Coberly v. Coberly, No. 97-493
    • United States
    • Court of Appeal of Florida (US)
    • 21 Enero 1998
    ...visitation. See Beagle v. Beagle, 678 So.2d 1271 (Fla.1996); Sketo v. Brown, 559 So.2d 381 (Fla. 1st DCA 1990); Von Eiff v. Azicri, 699 So.2d 772 (Fla. 3d DCA 1997); Fitts v. Poe, 699 So.2d 348 (Fla. 5th DCA REVERSED and REMANDED for proceedings consistent with this opinion. BOOTH, JOANOS a......
  • Request a trial to view additional results
7 cases
  • Von Eiff v. Azicri, No. 91647
    • United States
    • United States State Supreme Court of Florida
    • 12 Noviembre 1998
    ...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 IS SECTION 752.01(1)(a......
  • Visitation of Z.E.R., In re, No. 98-0819
    • United States
    • Court of Appeals of Wisconsin
    • 11 Marzo 1999
    ...legal custody would have decision-making authority. 4 T.B. cites to Sketo v. Brown, 559 So.2d 381 (Fla.App.1990), Von Eiff v. Azicri, 699 So.2d 772 (Fla.App.1997), Herndon v. Tuhey, 857 S.W.2d 203 (Mo.1993), Komosa v. Komosa, 939 S.W.2d 479 (Mo.App.1997), Peterson v. Peterson, 559 N.W.2d 82......
  • Williams v. Spears, No. 98-926
    • United States
    • Court of Appeal of Florida (US)
    • 7 Octubre 1998
    ...In Von Eiff v. Azicri, the Third District upheld the constitutionality of court-ordered visitation in the case of a deceased parent. 699 So.2d 772 (Fla. 3d DCA 1997), review granted, No. 91,647, --- So.2d ----, 23 Fla. L. Weekly S583 (Fla. Mar. 24, 1998). The court in Von Eiff stressed that......
  • Coberly v. Coberly, No. 97-493
    • United States
    • Court of Appeal of Florida (US)
    • 21 Enero 1998
    ...visitation. See Beagle v. Beagle, 678 So.2d 1271 (Fla.1996); Sketo v. Brown, 559 So.2d 381 (Fla. 1st DCA 1990); Von Eiff v. Azicri, 699 So.2d 772 (Fla. 3d DCA 1997); Fitts v. Poe, 699 So.2d 348 (Fla. 5th DCA REVERSED and REMANDED for proceedings consistent with this opinion. BOOTH, JOANOS a......
  • Request a trial to view additional results

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