Judge ignores FL law

[sarahh08]

What is the name of your state (only U.S. law)? FL

I need some advice, whether it's just some helpful links to legal aid, or if anyone knows what steps I have to take. It's a long story so here goes...

My fiance has a daughter with his ex-girlfriend. His ex kept their daughter out of his life for the first 2 1/2 years until she finally had a "change of heart" and allowed him to come meet her. This was in August of 2008 that we met her. In February 2009, my fiance was ordered to take a DNA test to prove he was the father. He cooperated and did everything he was supposed to, knowing he would probably be made to owe her money. But that also meant he would get his rights. In March 2009, the mother got into a car accident with the daughter Jordan in the car. The mother did not make it, but thankfully my fiances little girl did. His daughter was in ICU for almost a week. While she was in the hospital, the DNA results came in, proving that he was definetely her father. The hospital then made sure all decisions were made by him,(everything was under maternal grandmother's control until then). He gave the maternal grandmother permission to bring his daughter to her home to mourn the loss of her mother. He understood the grandmother needed her time. When Easter came, we drove 4 hours to the Grandmothers house to pick up Jordan so she could spend the day with her daddy and his family, we were having a big family party. We even gave her notice. When we got there, she refused to let us take her. The cops wouldnt deal with it because no one had paperwork from the courts stating who had custody. Since then, there has been two hearings, both of which my fiance has had proof that the grandmother has lied on her petitions. The first hearing we had a lawyer, and the judge specifically told the grandmother that grandparent rights are dead in FL and she could not order my fiance to give the grandmother visitation. The grandmother was able to keep Jordan in her home for two more weeks after that, calling it a "transitional period", which was understandable for Jordan's sake. After two weeks passed, my fiance and the grandmother met at one of Jordans dr appointments and after her appointment, I helped the grandmother put Jordans belonging in our trunk and Jordan left with us. The second hearing took place because the grandmother filed another petition that was also full of lies. This judge seemed like he was already on the grandmother's side before my fiance even got there. The judge didn't care what he had to say(we couldnt afford an attorney this time), and didn't even want to see his proof that the grandmother has once again lied on another petition. During the hearing, the attorney for the grandmother kept referring to her as "the mom" and the judge never corrected her. The judge even stated that if this case would have came in front of him sooner, that he would have just given Jordan to the grandmother. But because Jordan has now been living with us for two months, he said he wont take her from us. This hearing was on this past tuesday (7/28/09). The judges orders were: This friday, the grandmother gets Jordan and has her for two weeks. And after that, she gets her EVERY OTHER weekend. As I said before, she lives about 4 hours away from us. Her attorney claimed she picked a halfway point for us to drive to so we can drop her off, and then go pick her up, but this is no halfway point. We are driving a little while longer than the grandmother will have to. Meanwhile, Jordan is going to get so confused. She knows her grandmother, I know she was around her more than she was her own mother. Her mother wasn't exactly always in the picture. The grandmother stepped in a lot, supposedly, when the mother was out of the picture.

Sorry this is so long, but I know there would be a lot of questions and I hope this already answers most of them. I might have missed some details, so dont hesitate to ask me anything. We just really need help, between needing affordable legal help, and any steps we are supposed to take to find out if this second judge is allowed to do this. We have a feeling that the grandmother and her attorney know this judge. He has over-ruled what the first judge ordered, AND going against what we were told by a judge was FL law.

~Sarah

 

[mommyof4]

http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=Ch0752/SEC01.HTM&Title=->2009->Ch0752->Section%2001#0752.01

752.01 Action by grandparent for right of visitation; when petition shall be granted.--

(1) The court shall, upon petition filed by a grandparent of a minor child, award reasonable rights of visitation to the grandparent with respect to the child when it is in the best interest of the minor child if:

(a) The marriage of the parents of the child has been dissolved;

(b) A parent of the child has deserted the child; or

(c) The minor child was born out of wedlock and not later determined to be a child born within wedlock as provided in s. 742.091.

(2) In determining the best interest of the minor child, the court shall consider:

(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.

(d) The mental and physical health of the child.

(e) The mental and physical health of the grandparent or grandparents.

(f) Such other factors as are necessary in the particular circumstances.

(3) This act does not provide for grandparental visitation rights for children placed for adoption under chapter 63 except as provided in s. 752.07 with respect to adoption by a stepparent.

History.--s. 1, ch. 84-64; s. 70, ch. 87-226; s. 6, ch. 90-273; s. 1, ch. 93-279; s. 2, ch. 2000-156.

Actually, the second judge made no legal mistake in his ruling. I find it hard to believe that the first judge actually said that there was no grandparent visitation rights in Florida as it is clearly stated by the FL statutes that GPV may be awarded if certain conditions are presented and met.

The parents of the child were never married. The child has a significant relationship with her grandmother (by your admission). "Such other factors" would be that the mother of the child (the grandmother's daughter) is deceased. The judge ruled that it is in the best interest of the child to continue that relationship through court ordered visitation.

 

[LdiJ]

http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=Ch0752/SEC01.HTM&Title=->2009->Ch0752->Section%2001#0752.01





Actually, the second judge made no legal mistake in his ruling. I find it hard to believe that the first judge actually said that there was no grandparent visitation rights in Florida as it is clearly stated by the FL statutes that GPV may be awarded if certain conditions are presented and met.

The parents of the child were never married. The child has a significant relationship with her grandmother (by your admission). "Such other factors" would be that the mother of the child (the grandmother's daughter) is deceased. The judge ruled that it is in the best interest of the child to continue that relationship through court ordered visitation.

Actually, the second judge did indeed make a legal mistake in his ruling. The Florida Supreme Court has struck down the law you quoted as unconstitutional under the Florida Constitution. Its still on the books, but its a dead law now.

Dad needs to hire an attorney appeal this ruling...immediately.

 

[Ohiogal]

I disagree with LD. The judge may not have made a mistake in ruling due to the fact that if grandma showed there was harm to the child in not having visitation then she could have been awarded visitation -- per case law. I can cite mine.

866 So.2d 28
Sullivan v. Sapp, 866 So.2d 28 (Fla. 01/15/2004)
866 So.2d 28, 2004.FL.0000220 , 29 Fla. L. Weekly S15

Clearly, this Court has consistently held all statutes that have attempted to compel visitation or custody with a grandparent based solely on the best interest of the child standard, without the required showing of harm to the child, to be unconstitutional. We agree with the district court below and likewise hold that section 61.13(2)(b)2.c. of the Florida Statutes is unconstitutional as violative of Florida's right of privacy because it fails to require a showing of harm to the child prior to compelling and forcing the invasion of grandparent visitation into the parental privacy rights.

If grandma showed that harm would come to the child (and the law also allows if the child was ever found to be a dependent child) by not visiting she could be awarded visitation.
What reasoning was contained in the findings of fact?

 

[LdiJ]

I disagree with LD. The judge may not have made a mistake in ruling due to the fact that if grandma showed there was harm to the child in not having visitation then she could have been awarded visitation -- per case law. I can cite mine.

866 So.2d 28
Sullivan v. Sapp, 866 So.2d 28 (Fla. 01/15/2004)
866 So.2d 28, 2004.FL.0000220 , 29 Fla. L. Weekly S15

If grandma showed that harm would come to the child (and the law also allows if the child was ever found to be a dependent child) by not visiting she could be awarded visitation.
What reasoning was contained in the findings of fact?

OG...the statute she quoted does not require a finding of harm. None of the FL gpv statutes require a finding of harm, which is why they were all struck down. Their legislature has been trying to re-write the law since about 1999, but nothing has ever passed.

There is no current statutory standing for a grandparent to sue for visitation with a grandchild.

Now, it is true that in dependency cases a grandparent may be granted visitation under statutes having nothing to do with gpv, but gpv itself is a dead issue in Florida. This is firmly established law.

Unless this particular father was found to be unfit, the judge should not have granted a gpv order to grandma. If the father was unfit, then the judge would have had the discretion to award custody to grandma.

What's more, a careful reading of what you quoted:

Clearly, this Court has consistently held all statutes that have attempted to compel visitation or custody with a grandparent based solely on the best interest of the child standard, without the required showing of harm to the child, to be unconstitutional. We agree with the district court below and likewise hold that section 61.13(2)(b)2.c. of the Florida Statutes is unconstitutional as violative of Florida's right of privacy because it fails to require a showing of harm to the child prior to compelling and forcing the invasion of grandparent visitation into the parental privacy rights

backs up what I said. None of the statutes require a showing of harm, therefore all of the statutes are unconstitutional. Since grandparents have no inherent rights where there grandchildren are concerned, they must have statutory standing to sue for rights.

This ruling will be overturned on appeal. You cannot find a case that has been upheld on appeal unless the ruling was made under a statute that has nothing to do with gpv. If you can find a case, in the last 9 or 10 years, that was upheld under the gpv statutes please provide a cite and a link, because our group and the attorney we work with has reviewed every one of them.

 

[sarahh08]

The judge said that because the grandmother's first petition was called "temporary custody by extended family member", that she now has rights. And that's all he would say. Before the first judge ordered that after a two week transitional period Jordan would come live with us, Department of Children and Families interviewed my fiance & I, they investigated our home and noted it was 100% safe, and not to mention we have two boys of our own- her half brothers. And now that she has been living here, they are extremely close.

 

[LdiJ]

The judge said that because the grandmother's first petition was called "temporary custody by extended family member", that she now has rights. And that's all he would say. Before the first judge ordered that after a two week transitional period Jordan would come live with us, Department of Children and Families interviewed my fiance & I, they investigated our home and noted it was 100% safe, and not to mention we have two boys of our own- her half brothers. And now that she has been living here, they are extremely close.

No...that doesn't give her rights. Her naming a petition a certain way doesn't extend any special standing to grandma. Your husband just got a judge that is willing to buck established law.

Again, dad needs to appeal this ruling. Unfortunately appeals are expensive and require an attorney, but he really needs to appeal it.

 

[Ohiogal]

No...that doesn't give her rights. Her naming a petition a certain way doesn't extend any special standing to grandma. Your husband just got a judge that is willing to buck established law.

Again, dad needs to appeal this ruling. Unfortunately appeals are expensive and require an attorney, but he really needs to appeal it.

Department of Children and Families was involved. Most likely there was a finding of dependency that resulted in grandma getting temporary custody which then allows her visitation. Did you consider that? Oh yeah. You didn't. The judge is just wrong. I understand. The judge is wrong. And YOU are correct.

You just can't admit when you are wrong. EVER. If someone disagrees with you then you call what they say complete and utter BS. If the opinion is backed up you tell the person to go see a lawyer.

You know I have seen everyone but you admit when they are wrong. I have admitted I am wrong. People that you have criticized have admitted to being wrong. When have you EVER admitted you were wrong about something?

 

[sarahh08]

Thank you for your help. I hope we can find a way to afford this. This woman is still up to something. And the way judge seems to be on her side, he could grant her custody at the next hearing if she comes up with something good enough. The judge already said he would've placed Jordan with her if she hadn't been with us for two months already. Apparently thats their goal is to get custody. They were disappointed when the judge said he wouldnt remove Jordan from our home at this time. That's not thinking in Jordan's best interest. Why would anyone want to take a child from their 100% fit parent and her brothers? That only hurts the child.

 

[sarahh08]

The only reason she was granted temporary custody was for one: When she filed the petition, she was granted temporary custody for the 4 days that lead up to the hearing, that way Jordan wasn't taken out of jurisdiction. And two: After the first hearing, she was granted only two weeks which was to serve as a transitional period until she came to live with us. That's it.

 

[Ohiogal]

The only reason she was granted temporary custody was for one: When she filed the petition, she was granted temporary custody for the 4 days that lead up to the hearing, that way Jordan wasn't taken out of jurisdiction. And two: After the first hearing, she was granted only two weeks which was to serve as a transitional period until she came to live with us. That's it.

No the reason she was granted temporary custody was because the child was an orphan while in the hospital temporarily. Until paternity was established the child had NO parent and the state stepped in to make sure the child was taken care of. The child was dependent on the state. That is how DCF got involved. Why? Because mom was dead, and dad had not been established as having ANY legal rights.

Grandma can get visitation due to that. But listen to the tax professional. She knows it all.

 

[sarahh08]

I don't care what your problem is with other posters on here, but please concentrate on the post. None of the court stuff happened until Jordan had already been home with the grandma for a little while. The hospital wasn't letting Jordan leave with anyone BUT my fiance. He had to give her written permission to be able to take her, and he did that out of the kindness of his heart. Look where that got us.

 

[sarahh08]

WE involved DCF when the grandmother wouldnt cooperate with us. And this was after she out of the hospital. At the hospital, no one but my fiance had rights. Every decision or question was turned to him.

 

[Ohiogal]

WE involved DCF when the grandmother wouldnt cooperate with us. And this was after she out of the hospital. At the hospital, no one but my fiance had rights. Every decision or question was turned to him.

Legally without a COURT ORDER your fiance had NO rights. NONE. If mom would have made it the hospital could have been sued for allowing your fiance to do anything dealing with this child.

 

[Ohiogal]

Thank you for your help. I hope we can find a way to afford this. This woman is still up to something. And the way judge seems to be on her side, he could grant her custody at the next hearing if she comes up with something good enough. The judge already said he would've placed Jordan with her if she hadn't been with us for two months already. Apparently thats their goal is to get custody. They were disappointed when the judge said he wouldnt remove Jordan from our home at this time. That's not thinking in Jordan's best interest. Why would anyone want to take a child from their 100% fit parent and her brothers? That only hurts the child.

Her brothers? She has not had a relatinoship with HER brothers. Your fiance had 2.5 years to step up and force a paternity test and custody and he didn't. If grandma proves that your fiance is unsuitable, she can win.