Under What Circumstances Can a Court Intrude Upon the Parent-Child Relationship by Awarding Visitation Rights to a Grandparent

In Von Eiff v. Azicri, 720 So. 2d 510 (Fla. 1998), the court explained that Florida's Constitution guarantees a right to privacy and that such right includes a parent's fundamental right to rear his or her child free from governmental intrusion and control. See 720 So. 2d at 513. The court further explained that "the state can satisfy the compelling state interest standard [only] when it acts to prevent demonstrable harm to a child." Id. at 515 (quoting Beagle, 678 So. 2d at 1276). Accordingly, we held that a trial court may not intrude upon the parent-child relationship by awarding visitation rights to a grandparent without evidence of a demonstrable harm to the child. Id.; see also Beagle, 678 So. 2d at 1276. The statute at issue in Von Eiff and Beagle provides in pertinent part: (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) One or both parents of the child are deceased; (b) the marriage of the parents of the child has been dissolved; (c) a parent of the child has deserted the child; (d) 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; or (e) the minor is living with both natural parents who are still married to each other whether or not there is a broken relationship between either or both parents of the minor child and the grandparents, and either or both parents have used their parental authority to prohibit a relationship between the minor child and the grandparents. 752.01 (1), Fla. Stat. (1997). Von Eiff involved a challenge to section 752.01(1)(a) and Beagle involved a challenge to section 752.01(1)(e), Florida Statutes (1995). Idaho and Kentucky have similarly worded statutes. the Idaho statute states that "in any case where the child is actually residing with a grandparent in a stable relationship, the court may recognize the grandparent as having the same standing as a parent for evaluating what custody arrangements are in the best interests of the child." See Idaho Code 32-717 (1996); see also Ky. Rev. Stat. Ann. 620.027 (Michie 1999) (same). Neither Idaho nor Kentucky courts have addressed the constitutionality of the statutory provisions. Statutes in several other states, however, require findings of parental unfitness or harm to the child before permitting custody to third persons. See Cal. Fam. Code 3041 (West 1994) ("Before making an order granting custody to a person or persons other than a parent, without the consent of the parents, the court shall make a finding that granting custody to a parent would be detrimental to the child and that granting custody to a nonparent is required to serve the best interest of the child."); La. Civ. Code Ann. art. 133 (West 1999) ("If an award of joint custody or of sole custody to either parent would result in substantial harm to the child, the court shall award custody to another person with whom the child has been living in a wholesome and stable environment, or otherwise to any person able to provide an adequate and stable environment."); Mo. Ann. Stat. 452.375(5)(a) (West Supp. 2000) ("When the court finds that each parent is unfit, unsuitable, or unable to be a custodian, or the welfare of the child requires, and it is in the best interests of the child, then custody, temporary custody, or visitation may be awarded to any other person or persons deemed by the court to be suitable to provide an adequate and stable environment for the child.").