ROBERT RUSSO, APPELLANT,
v.
ANTHONY PERSICO AND JOANNE PERSICO, APPELLEES
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Robert Russo appeals a trial court order granting visitation rights to his deceased wife's parents (the maternal grandparents) with their four-year-old daughter. The Fourth District reverses, holding that Florida's grandparent visitation statute unconstitutionally infringes on a parent's fundamental right to raise children without government interference by failing to require a showing of demonstrable harm to the child before imposing visitation.
The court held that section 752.01(1)(a) is unconstitutional as applied because it infringes on a parent's fundamental right to raise children free from government interference, protected by the privacy provision in the Florida Constitution, article 1, section 23. The statute's failure to apply the compelling state interest standard and require a showing of demonstrable harm before imposing forced grandparental visitation violates the parent's constitutional rights.
[1] A statute requiring grandparent visitation based solely on the child's best interest, without a showing of demonstrable harm, unconstitutionally infringes on a parent's f…
[2] The Florida Constitution protects a parent's fundamental right to raise children free of government interference.
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Join FLexlaw to unlock all legal intelligence“we conclude that this provision of the statute unconstitutionally infringes on a parent's fundamental right to raise children free of interference from the government, as protected by the privacy provision in the Florida Constitution, article 1, section 23, for failure to apply the compelling state interest standard”
States the core holding: the statute violates the parent's constitutional right to direct child-rearing without applying strict scrutiny
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Join FLexlaw to unlock all legal intelligenceRobert Russo's deceased wife's parents (Anthony and Joanne Persico) sought visitation rights with their four-year-old granddaughter. The trial court g…
The full statement of facts, procedural history, and disposition for this case are member content.
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PER CURIAM.
Robert M. Russo appeals the final order granting visitation rights with his four-year-old daughter to appellees, her maternal grandparents, the parents of his deceased wife, based solely on the constitutionality of the applicable provision of the grandparent visitation statute, section 752.01(1)(a), Florida Statutes. We reverse.
As the supreme court found in Beagle v. Beagle, 678 So. 2d 1271 (Fla.1996) (finding unconstitutional section . 752.01(1)(e)), we conclude that this provision of the statute unconstitutionally infringes on a parent’s fundamental right to raise children free of interference from the government, as protected by the privacy provision in the Florida Constitution, article 1, section 23, for failure to apply the compelling state interest standard. See Winfield v. Division of Pari-Mutuel Wagering, Dep’t of Bus. Regulation, 477 So. 2d 544, 548 (Fla.1985). The statute requires the trial court to award reasonable visitation rights merely upon a showing of “best interest” of the minor child, and does not require a showing of demonstrable harm prior to the imposition of forced grandpa-rental visitation.1 See Von Eiff v. Azicri, 699 So. 2d 772, 780-84 (Fla. 3d DCA 1997) (Green, J., dissenting). We align ourselves on this question with the Fifth District, see Fitts v. Poe, 699 So. 2d 348 (Fla. 5th DCA 1997), and certify conflict with the First and Third Districts, see Sketo v. Brown, 559 So. 2d 381 (Fla. 1st DCA 1990); Von Eiff, 699 So. 2d at 777.
We certify to the Florida Supreme Court the following question, narrowly tailored to the facts of the instant case:
MAY THE STATE CONSTITUTIONALLY REQUIRE REASONABLE GRANDPARENT VISITATION WHERE ONE OF THE PARENTS OF A CHILD IS DECEASED AND VISITATION IS DETERMINED TO BE IN THE BEST INTEREST OF THE CHILD?
STONE, C.J., and FARMER and GROSS, JJ., concur. . This court recently upheld the constitutionality of section 752.01(i)(d), which applies when a child is born out of wedlock. See Spence v. Stewart, 705 So. 2d 996 (Fla. 4th DCA 1998). However, the situation presented in Spence is distinguishable because the parties to a paternity action have already placed their dispute before the court. See id. at 998 ("Because the parents have already abandoned their right of familial privacy by bringing their dispute before the court, the court's further consideration of whether grandparental visitation is in the best interest of the child is not violative of the right to privacy.”).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Winfield v. Division OF Pari-Mutuel Wagering, 477 So. 2d 544 (Fla. 1985)
- Beagle v. Beagle, 678 So. 2d 1271 (Fla. 1996)
- Sketo v. Brown, 559 So. 2d 381 (Fla. 1st DCA 1990)
- Spence v. Stewart, 705 So. 2d 996 (Fla. 4th DCA 1998)
- Jere Fitts and Jane Fitts v. POE, 699 So. 2d 348 (Fla. 5th DCA 1997)
- von Eiff v. Leonor Azicri and Roberto Azicri, 699 So. 2d 772 (Fla. 3d DCA 1997)