ROSE MARIE SMITH, APPELLANT,
v.
MINDY KOOLIDGE AND MICHAEL ORLOFF, APPELLEES
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Rose Marie Smith appealed the dismissal of her petition for grandparent visitation of her grandchild born out of wedlock. The Florida Fourth District Court of Appeal affirmed the dismissal, holding that section 752.01(1)(d) is unconstitutional and that grandparents may only seek visitation through section 61.13 in dissolution or paternity proceedings, not standalone under the invalidated statute.
Smith has no right to seek visitation because section 752.01(1)(d) is unconstitutional. Grandparents may only seek visitation through section 61.13 in the context of dissolution or paternity proceedings. Once the paternity action concluded, Smith had no valid statutory remedy for seeking visitation.
[1] A statute granting grandparent visitation rights is unconstitutional if it infringes upon a parent's fundamental right to privacy in raising their child.
[2] The right of parents to raise their children without unwarranted governmental interference is grounded in the constitutional right of privacy.
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“Saul rendered section 752.01(l)(d) unconstitutional.”
Establishes that the statutory provision at issue had already been declared unconstitutional by prior case law.
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Join FLexlaw to unlock all legal intelligenceSmith sought grandparent visitation of her grandchild born out of wedlock under section 752.01(1)(d), Florida Statutes. A paternity action between the…
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STONE, J.
We affirm the trial court’s dismissal of Smith’s petition for grandparent visitation based on Saul v. Brunetti, 753 So. 2d 26 (Fla.2000).
Smith sought grandparent visitation pursuant to section 752.01(l)(d), Florida Statutes (1999),1 stating that her grandchild had been born out of wedlock. A paternity action between the child’s parents was pending at the time. When the parents reached an agreement and reconciled, a final judgment on paternity was rendered, and the trial court dismissed Smith’s petition.
Saul rendered section 752.01(l)(d) unconstitutional. 753 So. 2d at 29. Smith asserts, however, that Spence v. Stewart, 705 So. 2d 996 (Fla. 4th DCA 1998), allows section 752.01(l)(d) to be constitutionally applied here. We disagree.
Spence recognized grandparents’ statutory right to seek visitation in dissolution and paternity proceedings. 705 So. 2d at 998. This court clarified in Brunetti v. Saul, 724 So. 2d 142 (Fla. 4th DCA 1998), aff'd, Saul v. Brunetti, 753 So. 2d 26 (Fla.2000), that Spence is grounded on section 61.13.2 We recognized, however, that where there is no proceeding under chapter 61 and the grandparents’ only source of recourse is section 752.01(1)(d), a grandparent has no right to seek visitation. Brunetti, 724 So. 2d at 142-43. See also L.B. v. C.A., 738 So. 2d 425 (Fla. 4th DCA 1999)(affirming dismissal of petition for visitation where grandparents relied only on section 752.01(l)(d)). In the instant case, the paternity action was no longer pending; thus, Smith had. only section 752.01(1)(d) on which to rely.
We also reject Smith’s assertion that section 752.01(l)(d) may be constitutionally applied when a child is threatened with harm. Saul declared section 752.01(l)(d) unconstitutional based on the reasoning of Von Eiff v. Azicri, 720 So. 2d 510 (Fla. 1998), and Beagle v. Beagle, 678 So. 2d 1271 (Fla.1996). Those cases declared other subsections of the statute unconstitutional, recognizing that the statutory provisions failed to require a showing of demonstrable harm to the child as the basis for awarding visitation rights. See Von Eiff, 720 So. 2d at 514; Beagle, 678 So. 2d at 1272, 1276. This failure made it impossible for the statute to satisfy the compelling state interest standard. Id. Thus, the statute, as it stands, is unconstitutional.
Accordingly, Smith has no right to seek visitation here.
GUNTHER and SHAHOOD, JJ., concur. . It should be noted that the current version of the statute lists subsection (d) as subsection (c). See § 752.01(1), Fla.Stat. (2000).
. This statute allows the court to award grandparents visitation rights in a dissolution proceeding if it is in the child’s best interests. See 61.13(2)(b)2.c., Fla.Stat. (2000).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Beagle v. Beagle, 678 So. 2d 1271 (Fla. 1996)
- von Eiff v. Leonor Azicri and Roberto Azicri, 720 So. 2d 510 (Fla. 1998)
- Spence v. Stewart, 705 So. 2d 996 (Fla. 4th DCA 1998)
- Saul v. Dominik Brunetti, 753 So. 2d 26 (Fla. 2000)
- Brunetti v. Saul, 724 So. 2d 142 (Fla. 4th DCA 1998)
- L.B. and B.B. v. C.A. & Dep't of Child. & Families, 738 So. 2d 425 (Fla. 4th DCA 1999)