final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Duval County. John I. Guy,
William S. Graessle and Jonathan W. Graessle of William S.
Graessle, P.A., Jacksonville, for Appellant.
Eduardo J. Mejias of AAA Family Law, LLC, Altamonte Springs,
case of first impression, the mother challenges the trial
court's interpretation of section 61.13002(2), Florida
Statutes (2016), which allows a military servicemember to
designate a family member to exercise that parent's
time-sharing while the servicemember is under temporary
assignment orders to relocate away from the child. The mother
also challenges the facial constitutionality of the statute.
We reverse because we conclude that this section does not
apply. We need not reach the constitutional challenge, and
decline to do so.
61.13002(2) provides as follows:
If a parent is activated, deployed, or temporarily assigned
to military service on orders in excess of 90 days and the
parent's ability to comply with time-sharing is
materially affected as a result, the parent may designate a
person or persons to exercise time-sharing with the child on
the parent's behalf. The designation shall be limited to
a family member, a stepparent, or a relative of the child by
marriage. The designation shall be made in writing and
provided to the other parent at least 10 working days before
the court-ordered period of timesharing commences. The other
parent may only object to the appointment of the designee on
the basis that the designee's time-sharing visitation is
not in the best interests of the child. When unable to reach
agreement on the delegation, either parent may request an
expedited court hearing for a determination on the
(7) of the statute provides that "[t]his section does
not apply to permanent change of station moves by military
personnel, which shall be governed by s. 61.13001."
§ 61.13002(7), Fla. Stat. In turn, section 61.13001,
although entitled "Parental relocation with a
child" (emphasis added), defines
"relocation" as "a change in the location of
the principal residence of a parent or other person, "
which must be "at least 50 miles from" the previous
principal residence and "for at least 60 consecutive
days." § 61.13001(1)(e), Fla. Stat.
2018 Florida Legislature repealed section 61.13002(2),
effective as of July 1, 2018. Ch. 18-69, § 2, Laws of
Fla. In its place, the Legislature unanimously created a new
part IV of Chapter 61 of the Florida Statutes, entitled
"Uniform Deployed Parents Custody and Visitation
Act" (UDPCVA). Ch. 18-69, § 1, Laws of Fla.
(creating new sections 61.703-773 of the Florida Statutes).
As its title indicates, the new statute is a uniform act that
fourteen states have adopted. The new uniform act contains a
designation provision somewhat similar to that of section
61.13002(2), as follows:
Upon the motion of a deploying parent and in accordance with
general law, if it is in the best interest of the child, a
court may grant temporary caretaking authority to a nonparent
who is an adult family member of the child or an adult who is
not a family member with whom the child has a close and
substantial relationship. In the case of an adult who is not
a family member with whom the child has a close and
substantial relationship, the best interest of the child must
be established by clear and convincing evidence.
Ch. 18-69, § 1, Laws of Fla. (creating new section
not appear that any reported decision addresses whether the
designation provision of section 61.13002(2) is
constitutional in light of the Florida Supreme Court's
decision in Beagle v. Beagle, 678 So.2d 1271 (Fla.
1996), and its progeny.Beagle holds that the state
cannot grant visitation rights to grandparents in an intact
family if one of the child's parents objects, without
demonstrating a compelling state interest. Id. at
1276-77. Later cases expanded the Beagle holding to
preclude grandparent visitation absent a showing of actual
harm to the child in families that are non-intact by reason
of death, dissolution, and illegitimacy. See Sullivan v.
Sapp, 866 So.2d 28, 35-37 (Fla. 2004) (detailing
post-Beagle holdings declaring portions of the
grandparent visitation statute unconstitutional). The supreme
court's consistent rule is that the state can show the
requisite compelling interest only by showing that the child
will endure actual harm as a result of the lack of
grandparent visitation. Id. at 36-37. As the court
held in Sullivan, ...