ANGELINA BRAGO, APPELLANT,
v.
BETH BRAGO, APPELLEE
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A paternal grandmother appealed an order that terminated her visitation rights with her grandchildren and denied her request for a guardian ad litem appointment. The court affirmed the suspension of visitation but reversed the permanent termination because the grandmother was not properly noticed that termination would be decided, requiring the trial court to reconsider the termination issue with proper notice.
The court affirmed the suspension of visitation as supported by evidence that it was not in the children's best interests, but reversed the permanent termination of visitation rights because the grandmother was not properly noticed that termination would be decided. The court also affirmed the denial of the guardian ad litem appointment without prejudice to future requests.
[1] A trial court's determination that grandparent visitation is not in the best interests of the children is supported by competent substantial evidence.
[2] A trial court cannot terminate a party's rights without proper notice that the issue will be decided.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The trial court ruled that it was not in the best interests of the children to enforce visitation at this time. That determination is supported by competent substantial evidence.”
Establishes that the court affirmed the suspension of visitation based on the best interests of the children standard and substantial evidence support.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe grandmother had been granted supervised visitation rights with two grandchildren pursuant to a February 21, 1989 order. The trial court subsequent…
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PER CURIAM.
Appellant, the paternal grandmother, appeals an order terminating her visitation rights and denying her request for the appointment of a guardian ad litem. We affirm in part and reverse in part.
After review of the record, we conclude that the only visitation issue properly noticed for hearing before the trial court was the grandmother’s motion to enforce the grandparent visitation order. The trial court ruled that it was not in the best interests of the children to enforce visitation at this time. That determination is supported by competent substantial evidence. See Kunst v. Kunst, 551 So. 2d 522 (Fla. 3d DCA 1989); § 752.01(2), Fla.Stat. (1991). See generally Michael J. Minerva, Jr., Comment, Grandparent Visitation: The Parental Privacy Right to Raise Their “Bundle of Joy”, 18 Fla.St.U.L.Rev. 533 (1991). To that extent, the order under review is affirmed. The effect of the order is to suspend the grandmother’s visitation rights.
The order is reversed insofar as it terminates all the grandmother’s visitation rights. No motion to terminate the grandmother’s visitation rights was noticed for hearing. The grandmother objected to the trial court’s consideration of termination of her visitation rights and, therefore, the matter was not tried by consent of the parties. Since the grandmother was not properly on notice that the issue would be decided by the trial court, the order must be reversed to the extent that it permanently terminates the grandmother’s visitation rights. See Jackson v. Warren, 593 So. 2d 331 (Fla. 3d DCA 1992); see also Shields v. Flinn, 528 So. 2d 967 (Fla. 3d DCA 1988); Falkner v. Amerifirst Fed. Sav. & Loan Ass’n, 489 So. 2d 758 (Fla. 3d DCA 1986); cf. Hunter v. Hunter, 540 So. 2d 235, 237 n. 2 (Fla. 3d DCA 1989). This ruling is without prejudice to the trial court’s considering the request to terminate the grandmother’s visitation rights, upon reasonable notice and an opportunity to be heard. See Scheer v. Scheer, 132 So. 2d 456, 458 (Fla. 3d DCA 1961).*
While we affirm the trial court’s decision not to appoint a guardian ad litem, this ruling is without prejudice to the parties to raise the issue again as circumstances warrant.
Affirmed in part, reversed in part, and remanded.
FERGUSON and COPE, JJ., concur. *
It should be noted that the February 21, 1989 order granting grandparent visitation stated that the grandmother was to be allowed supervised visitation with the two grandchildren. The order grants no visitation rights to the father’s sister and no unsupervised visitation to the grandmother.
GERSTEN, Judge,
concurring.
I specially concur. I agree with the majority that the grand-parental right of visitation was improperly terminated. I also agree that the trial court may reconsider this issue at a properly noticed hearing in the future. Because grandparents’ rights are such an integral part of the best interest of children, more must be written.
Chapter 752, of the Florida Statutes on grandparental visitation rights “clearly embodies] a legislative finding that grandpa-rental visitation, when in the best interest of the child, is also in the public interest.” Dixon v. Melton, 565 So. 2d 1378 (Fla. 1st DCA 1990).
In 1990, the Legislature provided criteria that the courts must consider in determining the best interest of the child. These criteria include:
(a)The willingness of the grandparent or grandparents to encourage a close relationship between the child and the parent or parents.
(b) The length and quality of the prior relationship between the child and the grandparent or grandparents.
(c) The preference of the child if the child is determined to be of sufficient maturity to express a preference.
Chapter 752, Fla.Stat. (1991).
Thus, once the court determines that grandparental visitation rights are in the best interest of the child, reasonable rights of visitation shall be awarded. Conversely, these same considerations should be applied when determining the termination of grandparents’ rights of visitation. These rights are so important that they should not be lightly dismissed. See Griss v. Griss, 526 So. 2d 697 (Fla. 3d DCA), review dismissed, 531 So. 2d 1353 (Fla.1988).
Accordingly, I agree that visitation rights should not be terminated, not just based on the lack of notice, but also based on Florida’s strong public policy to foster love and nurturing of children through grandparents’ rights of visitation.
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Heier v. Heier, 662 So. 2d 1319 (Fla. 4th DCA 1995)…ial court, dealing with the escalating acrimonious relations between the parents and the effect of the former husband’s behavior on the child, sought to institute a stop-gap measure until psychological evaluations were performed. See Brago v. Brago, 604 So. 2d 866 (Fla. 3d DCA 1992). Although the issue of visitation was before the trial court, the former wife had not requested a modification of custody. A permanent change of custody could only be ordered after proper pleadings have been filed and the opposing…
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F.M. v. The Dep't OF Child. & Families & The Guardian Ad Litem Program, 727 So. 2d 995 (Fla. 3d DCA 1999)…re had conferred special rights on grandparents including the following: “The termination of parental rights does not affect the rights of grandparents.” Id. § 39.475. That being so, this case is governed by this court’s decision in Brago v. Brago, 604 So. 2d 866 (Fla. 3d DCA 1992). In Brago the grandmother had come before the court on a motion to enforce a grandparent visitation order. At the hearing the trial court took up a request to terminate the grandmother’s visitation rights, even though there had be…
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R.P. and M.P. v. Dep't of Child. & Families, 779 So. 2d 649 (Fla. 1st DCA 2001)…, terminate their receipt of notices or reports, enjoin them from coming within 1,000 yards of any site where the grandchildren may be placed, and prohibit them from having any direct or indirect contact with their grandchildren. See Brago v. Brago, 604 So. 2d 866, 867 (Fla. 3rd DCA 1992). This ruling is without prejudice to the trial court’s consideration of the merits of the issues reversed herein upon appellants receiving reasonable notice and an opportunity to be heard. REVERSED in part and REMANDED.…
Authorities Cited
- Falkner v. Amerifirst Fed. Sav. & Loan Ass'n, 489 So. 2d 758 (Fla. 3d DCA 1986)
- Shields v. Flinn, 528 So. 2d 967 (Fla. 3d DCA 1988)
- Hunter v. Hunter, 540 So. 2d 235 (Fla. 3d DCA 1989)
- Scheer v. Scheer, 132 So. 2d 456 (Fla. 3d DCA 1961)
- Denyse Ann Griss v. Griss, 526 So. 2d 697 (Fla. 3d DCA 1988)
- In re the Marriage of Mary Nell Dixon v. Ronald Michael Melton (Deceased) and Ronald H. Melton and Frances C. Melton, 565 So. 2d 1378 (Fla. 1st DCA 1990)
- Kunst v. Kerri Bock Kunst, 551 So. 2d 522 (Fla. 3d DCA 1989)
- Nena Jackson & the Dep't of Health & Rehabilitative Servs. v. Warren, 593 So. 2d 331 (Fla. 3d DCA 1992)
- Martinez v. State, 593 So. 2d 331 (Fla. 3d DCA 1992)