May 3, 2013 ·
By Mike H. Gora
Q: My wife and I have been divorced for five years. We have two children. In a final judgment, entered by a judge, after a trial, she was designated as the residential parent with me as the visiting parent.
Since then I have seen my children occasionally, but have not insisted upon all of my rights, because every time I did she busted my chops. I am up to date on my child support, and I provide the health insurance for the children through my job.
A month ago, unfortunately, my ex lost her battle with breast cancer. My mother-in-law immediately moved into my old house with the kids. She never liked me. I told her the children ought to live with me now; she disagreed, calling me some name in front of the children.
I live with a girl friend. We have no plans to marry. We live in a three-bedroom rental. My former mother-in-law says she will not let me have the children, even for visitation. While she was alive, my ex-wife let me have the visitation that was in the judgment, whenever I wanted, and tried to get me to take them more often.
The mother-in-law has filed some legal papers, claiming that she should be given the children on a full time basis. She also says that I should only have supervised vitiation, if any. She claims I am a danger to my children because I am a diagnosed alcoholic, although I have been on the wagon for years.
She claims I am a bad influence on the children because I live with my girlfriend, in a neighborhood that is not a good as my old neighborhood, and ride a Harley. My lawyer claims that she may have a case. What do you think?
A: Under a United States Supreme Court decision many years ago, grandparent’s rights to grandchildren, then granted by Florida statutes were held unconstitutional.
Those statutes had given grandparents independent rights to visitation with their grandchildren, whether or not the parents were happily married, divorced, or going through a divorce.
The Florida Supreme Court followed legal precedent established by the United State Supreme Court, which held that a parent’s rights to a parental; relationship with their children had a constitution basis, which superceded the rights of any other relative. However, these rights are not without a limit.
In order for your mother-in –law to establish the rights that she seeks, she would have to prove a very substantial likelihood that you are a danger to your children, and that your rights as a parent should be totally removed. Her evidence would have to establish that your parenting would put the children in significant and real danger.
The level of proof to terminate parental rights is significant and not often invoked by Florida Courts in situations where you have had a continuing relationship with the children. More importantly, you were, recently approved for typical access to your children by a Florida Circuit Court Judge in a contested dissolution of marriage case.
It is unlikely, unless you have done something to seriously put your children in great danger after the Final Dissolution judgment, that another circuit judge would terminate your parental rights and turns the children over to your mother-in-law.
Hopefully, she has a reasonable lawyer, and you can negotiate your way out of your problem. A court will not be allowed to give “visitation” to your children’s grandparents without your agreement.
Michael H. Gora, divorce lawyer, has been certified by the Board of Specialization of The Florida Bar as a specialist in family and matrimonial law and is a partner in the law firm of Shapiro Blasi Wasserman & Gora PA in Boca Raton.
By Online Staff