December 1, 2005
Case Law Development: Probate Courts have Power to Order Guardians to Allow Grandparent Visitation
Do individuals appointed by a probate court as a guardians of a minor have the same constitutional rights to determine the upbringing of the child as would the child's parents? The Florida Court of Appeals held that they do not in a case in which the appointed guardians were maternal grandparents and the paternal grandparent had sought visitation. The probate court, relying on a series of Florida cases holding that state's Grandparent visitation statute unconstitutional, denied the petition on the grounds that the paternal grandparent had no "right" to visitation. Reviewing a century of case law from across the United States, the Court of Appeals reversed. The court held that, while the guardians are required to act in loco parentis, their appointment as guardians "did not bestow upon them the constitutional privacy interest that natural parents enjoy regarding the care and custody of their children." Thus, while the court would not have the power to order grandparent visitation without a showing of harm to the children were the order sought against the parents, the probate court had the power to order the guardians to allow grandparent visitation if it was in the best interests of the child.
S. v. R.E.T. & S., 2005 Fla. App. LEXIS 18762 (November 30, 2005)
Opinion on the web at http://www.2dca.org/opinion/November%2030,%202005/2D04-4973.pdf (last visited December 1, 2005 bgf)