SAM DAVIS AND GARDENIA DAVIS, APPELLANTS,
v.
LEONARD AND ARDELLA DIXON, APPELLEES
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Maternal grandparents appealed an order restricting their visitation with their grandchild. The court reversed the restriction, holding that visitation rights established in a final judgment can only be modified upon a material change in circumstances adversely affecting the child's best interests, which was not demonstrated here.
The court held that no material change in circumstances was demonstrated. The tension the child might experience from the conflict between parties is inherent in the circumstances and not caused by the grandparents' visitation itself, and therefore cannot justify restricting visitation under the law.
[1] Grandparents' visitation privileges established in a final judgment may be modified only upon a material change in circumstances which has adversely affected the best int…
[2] Tension between parties inherent in circumstances, not caused by visitation, does not justify restriction of visitation privileges.
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Join FLexlaw to unlock all legal intelligence“grandparents' visitation privileges established in a final judgment may be modified only upon a material change in circumstances which has adversely affected the best interests of the child”
Establishes the legal standard governing modification of visitation rights
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Join FLexlaw to unlock all legal intelligenceThe Davises (maternal grandparents) had visitation rights with T.R.D. established in a prior final judgment that granted adoption to the Dixons (mater…
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SCHWARTZ, Chief Judge.
The Davises, who are the maternal grandparents of T.R.D., appeal from an order which limits their visitation privileges with the child. We reverse.
This is the third time these parties have appeared before this court. See Davis v. In re Adoption of T.R.D., 575 So. 2d 1364 (Fla. 3rd DCA 1991); Davis v. Dixon, 545 So. 2d 318 (Fla. 3rd DCA 1989), review denied, 551 So. 2d 460 (Fla.1989). In the more recent case, we affirmed a final judgment which granted the petition for adoption of the Dixons, the child’s maternal great aunt and uncle, and awarded the appellants visitation in accordance with a schedule to which the parties then agreed but which was modified in the present order. Like other such provisions, grandparents’ visitation privileges 1 established in a final judgment2 may be modified only upon a material change in circumstances which has adversely affected the best interests of the child. Bates v. Wishart, 545 So. 2d 906, 907 (Fla. 2d DCA 1989); Ferrell v. Ruege, 397 So. 2d 723, 725 (Fla. 1st DCA 1981); see 25A Fla.Jur.2d Family Law § 886 (1992). We find that no such circumstances have been demonstrated. See Azar v. Azar, 584 So. 2d 185 (Fla. 4th DCA 1991). The tension which the child may unfortunately undergo under the existing arrangement, upon which the appellees rely to justify the order below, is caused by a conflict between the parties which is inherent in the circumstances, and not by the Davises’ visitation. Under the law, the visitation therefore may not be restricted on this record. Compare Walborsky v. Walborsky, 258 So. 2d 304 (Fla. 1st DCA 1972) (restriction of visitation justified by “extremely aggravating and distressing” conduct of non-custodial father), cert. denied, 263 So. 2d 831 (Fla.1972); cf. also Vannucci v. Vannucci, 546 So. 2d 800 (Fla. 5th DCA 1989) (sexual abuse of child sufficient reason to restrict visitation). For these reasons, the order under review is reversed. See Sharp v. Hixon, 293 So. 2d 113 (Fla. 2d DCA 1974).
Reversed and remanded.
. Our conclusion makes it unnecessary to address the appellants’ contentions regarding the application of sections 752.01, 752.015, Florida Statutes (1991).
. Compare Saenz v. Saenz, 602 So. 2d 973 (Fla. 3d DCA 1992).
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Citator
Cited By
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Rohlfs v. Rohlfs, 666 So. 2d 568 (Fla. 3d DCA 1996)…. Finding that the record does not demonstrate circumstances justifying a restriction on the location of the father's visitation, we reverse the order restricting his visitation. See Yandell v. Yandell, 39 So. 2d 554, 555 (Fla.1949); Davis v. Dixon, 604 So. 2d 1236, 1237 (Fla. 3d DCA 1992); Saenz v. Saenz, 602 So. 2d 973 (Fla. 3d DCA), review denied, 613 So. 2d 8 (Fla. 1992); § 61.13(2)(b)l, Fla.Stat. (1993). . Our holding, however, does not preclude future trial court rulings declining to exercise-jurisdicti…
Authorities Cited (11 total)
- Orange Motors OF Coral Gables, Inc. v. Dade Cnty. Dairies, Inc., 263 So. 2d 831 (Fla. 1972)
- Walborsky v. Evelyne Walborsky, 258 So. 2d 304 (Fla. 1st DCA 1972)
- Davis v. Dixon, 545 So. 2d 318 (Fla. 3d DCA 1989)
- Saenz v. Saenz, 602 So. 2d 973 (Fla. 3d DCA 1992)
- Leslie Bates (Boggs) v. Wishart, 545 So. 2d 906 (Fla. 2d DCA 1989)
- Ferrell v. Ruege, 397 So. 2d 723 (Fla. 1st DCA 1981)
- Vannucci v. Vannucci, 546 So. 2d 800 (Fla. 5th DCA 1989)
- Sharp v. Hixon, 293 So. 2d 113 (Fla. 2d DCA 1974)
- Azar v. Azar, 584 So. 2d 185 (Fla. 4th DCA 1991)
- Michael H. McMILLAN, D.M.D. v. McGILL, 584 So. 2d 185 (Fla. 2d DCA 1991)