Grandparent Rights in Florida Divorce

When a marriage ends, the ripple effects reach far beyond the two spouses. Grandparents who have spent years building close bonds with their grandchildren often find that a divorce — and the custody battle that follows — suddenly limits or eliminates their time with the children. In Miami, where multigenerational households and close extended families are the norm rather than the exception, this loss can be devastating.

Florida law on grandparent rights is among the most restrictive in the country, but "restrictive" does not mean "nonexistent." There are specific statutory pathways under Chapter 752, Chapter 751, and Chapter 39 of the Florida Statutes, and there are practical, enforceable strategies grandparents and parents can use during a divorce to preserve grandparent-grandchild relationships. This page explains exactly what the law allows, the procedures involved in the Miami-Dade County family courts, and how our firm helps grandparents protect their role in their grandchildren's lives.

Why Florida Limits Grandparent Visitation Rights

The starting point is the Florida Constitution. Article I, Section 23 guarantees every person a right of privacy, and Florida courts have consistently interpreted that right to include a fit parent's fundamental right to raise children without government interference — including court-ordered visitation the parent opposes. As a result, Florida courts cannot simply award grandparent visitation because it would be good for the child. A grandparent must fit within a narrow statutory framework, and the burden of proof is heavy.

Understanding this constitutional backdrop is critical, because it explains the two realities every Miami grandparent must accept at the outset:

• If both parents are alive, fit, and simply divorcing, a grandparent generally has no independent statutory right to petition for court-ordered visitation over the parents' objection.
• The most effective protection during a divorce is usually contractual — building grandparent time into the parenting plan itself, with the cooperation of at least one parent.

Fla. Stat. § 752.011: The Statutory Petition for Grandparent Visitation

Florida's core grandparent visitation statute, Fla. Stat. § 752.011, allows a grandparent (or great-grandparent) of a minor child to petition the circuit court for visitation only in narrow circumstances:

• Both parents are deceased, missing, or in a persistent vegetative state; or
• One parent is deceased, missing, or in a persistent vegetative state, and the other parent has been convicted of a felony or an offense of violence evincing behavior that poses a substantial threat of harm to the child's health or welfare.

In 2022, the Legislature strengthened the statute: when one parent is deceased and a court of competent jurisdiction has found the surviving parent civilly or criminally liable for that parent's death, there is now a rebuttable presumption that granting visitation to the deceased parent's own parent (the grandparent) is in the child's best interests. This amendment gives grandparents in the most tragic circumstances a meaningful evidentiary head start they never had before.

The Two-Stage Procedure Under § 752.011

A grandparent visitation case in the Eleventh Judicial Circuit's Family Division proceeds in defined stages, and each has its own burden:

1. File a verified petition in the circuit court for the county where the child primarily resides. For children living in Miami, that means Miami-Dade County.
2. Preliminary hearing. Under § 752.011(3), the court first holds a preliminary hearing to determine whether the grandparent has made a prima facie showing of parental unfitness or significant harm to the child. If the grandparent cannot make that threshold showing, the court must dismiss the petition — and it may award the respondent reasonable attorney fees and costs. This fee-shifting risk is one reason a candid case evaluation before filing is essential.
3. Mediation. If the petition survives the preliminary hearing, § 752.015 requires the court to refer the family to family mediation in accordance with Chapter 44. Many grandparent cases resolve here, with a structured visitation schedule the family designs itself.
4. Final hearing. If mediation fails, the grandparent must prove, by clear and convincing evidence — the highest civil standard — all three of the following under § 752.011(4): (a) the parent is unfit or there is significant harm to the child; (b) visitation is in the child's best interests; and (c) visitation will not materially harm the parent-child relationship.

Best-Interest and Material-Harm Factors

Section 752.011(5) directs the court to weigh factors including the emotional ties between grandparent and child, the length and quality of the prior relationship, whether the grandparent established ongoing personal contact before the parent's death or disappearance, the reasons visitation ended, the child's preference if mature enough, and the child's mental and physical health. Section 752.011(6) separately requires the court to assess whether ordered visitation would materially harm the surviving parent's relationship with the child, considering disruption to the child's routine, the parent's reasonable parenting decisions, and any history of conflict.

A Worked Example

Consider a Miami grandmother whose son — the children's father — passed away last year. The children's mother has since been convicted of aggravated battery, a violent felony. The grandmother had cared for the children every weekend for six years before her son's death, but the mother has now cut off all contact.

This grandmother has standing under § 752.011 because one parent is deceased and the other has a qualifying violent felony conviction. Her attorney would file a verified petition in Miami-Dade circuit court attaching school records, photographs, text messages, and affidavits documenting the six-year caregiving history. At the preliminary hearing, the conviction itself, combined with evidence of the children's abrupt loss of a stabilizing figure, supports the prima facie showing. The case is then referred to mediation. If the mother refuses any schedule, the grandmother proceeds to a final evidentiary hearing where she must meet the clear-and-convincing standard on all three statutory elements. From filing to final hearing, a contested case of this kind commonly takes eight to fourteen months in the Family Division, depending on discovery and expert evaluations.

Grandparent Rights During an Active Divorce

Most grandparents who contact us are not dealing with a deceased parent — they are watching their child go through a divorce and fearing the other parent will freeze them out. Here is the honest legal picture, and the strategies that actually work.

1. Grandparent Time Written Into the Parenting Plan

Every Florida divorce involving minor children requires a parenting plan under Fla. Stat. § 61.13, approved by the court based on the child's best interests. Nothing prevents divorcing parents from agreeing to provisions that protect grandparent contact — for example, guaranteeing that the children spend certain holidays with the paternal grandparents, or that each parent may delegate childcare to grandparents during their own timesharing. Once incorporated into the final judgment, these provisions are court orders. If the other parent later violates them, the aggrieved parent can pursue contempt and other remedies through a proceeding to enforce the Florida divorce judgment.

Because these arrangements require cooperation, families with strong grandparent involvement often benefit from a collaborative divorce process, where the parents, their attorneys, and neutral professionals design a parenting plan that formally accounts for extended family relationships rather than leaving them to chance.

2. Timesharing Through the Parent

Grandparent access in Florida flows primarily through the parent. A parent with substantial timesharing can share that time with the grandparents freely. That means the grandparents' practical interests are often best served by ensuring their adult child obtains a strong timesharing schedule. Evidence of grandparent involvement — school pickups, medical appointments, caregiving history — is relevant to several best-interest factors under § 61.13(3), and gathering it properly is part of the divorce discovery process in Florida.

3. Chapter 751: Temporary or Concurrent Custody by Extended Family

When grandparents are already raising a grandchild — a common situation in Miami — Chapter 751, Florida Statutes, allows an extended family member who has physical custody of the child, or who has the signed, notarized consent of the child's legal parents, to petition for temporary or concurrent custody. A Chapter 751 order lets grandparents enroll the child in school, consent to medical treatment, and obtain records. Concurrent custody under § 751.011 does not eliminate the parents' rights; it runs alongside them.

4. Chapter 39: Dependency Cases

If a grandchild is adjudicated dependent due to abuse, abandonment, or neglect, Fla. Stat. § 39.509 grants grandparents a right to reasonable visitation with the child unless the court finds it is not in the child's best interest or would interfere with reunification goals. Grandparents are also frequently the first placement option considered when a child is removed from the home.

Comparing the Legal Pathways

Special Considerations for Miami Families

Adoption can cut off rights. If a grandchild is later adopted — including in some stepparent adoption scenarios — grandparent visitation rights may be extinguished. Grandparents should act before an adoption is finalized, not after.

International family dynamics. Miami families frequently have parents or grandparents living abroad, assets in multiple countries, and relocation issues layered on top of custody disputes. When a divorcing parent may relocate a grandchild overseas, grandparent access should be addressed within the framework of a Miami international divorce, including relocation provisions under Fla. Stat. § 61.13001, which requires a petition, a 20-day objection window, and specific statutory findings before a child may be moved more than 50 miles away for 60 consecutive days or more.

Document the relationship now. Whatever pathway applies, courts respond to evidence: calendars showing regular caregiving, school and medical records listing the grandparent as a contact, photographs, and communications. Grandparents who anticipate conflict should begin preserving this record immediately.

How Our Miami Family Law Attorneys Can Help

We evaluate every grandparent case against each statutory pathway before recommending action, because filing an unwinnable § 752.011 petition risks dismissal and a fee award against you. Where standing exists, we build the evidentiary record needed to survive the preliminary hearing and prevail at the final hearing. Where it does not, we work through the divorce itself — negotiating enforceable parenting plan provisions, supporting the parent's timesharing case, or pursuing Chapter 751 custody when grandparents are the child's real caretakers. Our goal is always the same: a legally durable arrangement that keeps you in your grandchild's life.

You can contact the Law Offices of Albert Goodwin by phone at 786-522-1411 or by email at [email protected].