This is a difficult reality for most grandparents, but the short answer is probably no. The right of parents to rear their children and to have the privacy to choose with whom they associate is a “Fundamental Right” protected by the 14th Amendment of the U.S. Constitution. A Fundamental Right is a right that is so engrained in the fabric of our society that it is to receive the highest level of constitutional protection against government interference. “But I’m not the government,” you say, “I’m just the grandparent.” That fact may be true, however in order to assert any rights in a court of law, you would need to use some statute or law, and have “standing” to challenge the parent(s) in court. Standing, by definition, is the capacity of a party to bring suit in court. Grandparents generally do not have standing to simply challenge the decisions made by “fit” parents. This fact was clearly illustrated in the U.S. Supreme Court case, Troxel v. Granville, 530 U.S. 57 (2000). In Troxel, the paternal grandparents brought a petition requesting visitation with their granddaughters. The issue that the court decided was whether the statute allowing anyone to petition the court for visitation infringed on the liberty interest of parents. In short, the Supreme Court held that the statute was unconstitutional and that the liberty interest of parents in the care, custody and control of their children is a fundamental right recognized by the court.
So where are we now? Normally, in child custody battles, so long as the fight is between parents, the courts will apply the Best Interest of the Child factors. Those factors are listed in Florida Statute 61.13(3). However, you’re a grandparent, so what can you do? If it’s simply regular visitation you’re looking for, then no; as stated above, parents have the fundamental right to decide how to raise their children.
However, if your situation is less about just wanting to see the child, and more about a concern for their health, safety, and well-being, then you may have some ground to stand on. Florida Statutes, Chapter 751 provides the foundation for “Temporary Custody of Minor Children by Extended Family.” This chapter allows a third party family member to challenge the parent(s) “fitness” in providing for the “care and control” of the minor child, by proving “abuse, abandonment, or neglect” by clear and convincing evidence. The standard “clear and convincing” is a higher burden of proof, so be sure that you have the evidence to back up whatever allegations you are making. And remember, this type of claim is not one that uses the best interest factors mentioned above. Often times, grandparents forget this vital point. They make the claim that there is “abuse, abandonment, or neglect,” only to follow such allegations with discussions about “the child is better off with me” or “I can provide a much better life for him/her.” Such statements, although maybe true, are irrelevant in this situation. The focus instead, is on the parent(s) fitness and whether the child is being abused, has been abandoned, or is being neglected. If you were to prevail on such a claim, then the court would award “temporary” custody, until such time as when the parent in question can do what is necessary to regain care and control. If you are concerned about the welfare of your grandchild, don’t hesitate, contact a family law professional today.