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Overstreet v. Overstreet

Florida Court of Appeals, First District

April 25, 2018

Marcy Nicole Overstreet, Appellant,
v.
Dwayne Stanley Overstreet, Appellee.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

          On appeal from the Circuit Court for Duval County. John I. Guy, Judge.

          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, for Appellee.

          KELSEY, J.

         In this 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.

         Section 61.13002(2)

         Section 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 designation.

         Subsection (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.

         The 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.[1] 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 61.739(1)).

         It does 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.[2]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, ...


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