FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D2022-0039

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JENNIFER M. MATTINGLY and

CHARLES T. MATTINGLY,

Appellants,

v.

LISA HATFIELD,

Appellee.

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On appeal from the Circuit Court for Leon County.

Barbara K. Hobbs, Judge.

July 3, 2024

ON MOTIONS FOR REHEARING AND REHEARING EN BANC

WINOKUR, J.

We deny Appellants’ motion for rehearing en banc, grant 

Appellants’ motion for rehearing, withdraw our opinion docketed 

February 28, 2024, and substitute the following in its place.

This appeal arises out of the parents’ attempt to block a 

grandparent’s visitation with their minor child. The parents 

challenge several trial court rulings in five issues raised on appeal. 

On rehearing, the parents argued the trial court did have the 

authority to modify a previous Kentucky child custody 

determination. Although we agree with the parents on this point 
2

of law, we write to explain why we are affirming the judgment 

dismissing the petition to modify grandparent visitation.

I

Appellants Jennifer M. Mattingly (“Mother”) and Charles T. 

Mattingly (“Father”) are the biological parents of E.M.M, born in 

Kentucky, where all parties lived in February 2009. Appellee Lisa 

Hatfield (“Grandmother”) is the maternal grandmother of E.M.M. 

The litigation began in Kentucky. 

The relationship between the Mother and Grandmother was 

deteriorating by 2013. At that time, the family still lived in 

Kentucky and recognized a “tradition” of Wednesday evening 

visitations between the Grandmother and E.M.M. When the 

Mother stopped allowing these visits, the Grandmother petitioned 

for grandparent visitation in Kentucky. 

In 2014, the Kentucky trial court granted the Grandmother’s 

petition and ordered visitation for several specific time periods. To 

support its order, the Kentucky court found by clear and 

convincing evidence that grandparent visitation was in E.M.M.’s 

best interests because the Grandmother was E.M.M.’s primary 

babysitter and they spent a substantial amount of time together.

Then, in 2016, the Mother and Father moved to Florida with 

E.M.M. In response to the relocation, the parties entered into an 

“Agreed Supplemental Judgment” (“2016 Kentucky visitation 

order”) that amended the Grandmother’s visitation to reflect the 

changed circumstances. 

The Grandmother, however, continued litigating the 

visitation order in Kentucky after the parents moved to Florida 

with the child. Eventually, the Kentucky court held the parents in 

contempt for failing to comply with certain terms of the modified 

visitation order, culminating in the parents’ incarceration. 

While the allegations that led to multiple contempt orders 

were being litigated in Kentucky, the parents attempted to register

the 2016 Kentucky visitation order; however, the Second Judicial 

Circuit Court in Leon County, Florida, refused to register the 

foreign judgment because the Kentucky court was continuing to 
3

exercise its exclusive jurisdiction over E.M.M.1 The Florida court 

found that the Kentucky court had rejected the parents’ claim that 

Kentucky was an inconvenient forum. Though the Grandmother 

initially opposed the parents’ petition to register the 2016 

Kentucky visitation order, she eventually filed her own request for 

registration. Shortly thereafter, the Grandmother filed another 

petition to enforce the 2016 Kentucky visitation order in Florida 

court, which included a request that the trial court direct the Leon 

County Jail to relinquish jurisdiction of the Mother to the Nelson 

County Sheriff’s Office in Kentucky. 

In 2018, the Kentucky court entered an “Agreed Order” (“2018 

Kentucky visitation order”). This order did not substantially 

change the Grandmother’s visitation schedule. Instead, the 2018 

Kentucky visitation order incorporated the grandparent visitation 

schedule set out in the 2016 Kentucky visitation order and 

awarded make-up time-sharing to the Grandmother. The order 

further stated the parties’ agreement that any party could 

domesticate the 2018 Kentucky visitation order in Florida. On that 

same day, the Grandmother filed a request to register the 2018 

Kentucky visitation order in Florida.

Approximately one year later, the parents filed a petition for 

dissolution of marriage. When the parents entered into a marital 

settlement agreement that divested the Grandmother of visitation, 

the Grandmother moved to intervene. She claimed a direct interest 

in the proceeding because she had been actively involved in 

E.M.M.’s life and exercised time-sharing pursuant to the Kentucky 

visitation orders. She further argued that the petition for 

dissolution of marriage was a “sham” action. 

Around this time, the parents moved to establish exclusive 

jurisdiction in Florida. The court ruled that “[a]ny visitation rights 

that the grandparent had in the Kentucky order can be enforced in 

Florida . . . .” The court also granted the Grandmother’s motion to 

intervene.

1 The parties often use the term “domesticate” to describe the 

efforts to file the Kentucky order in a Florida court, but “register” 

is a more appropriate term. See § 61.528, Fla. Stat.
4

A final judgment of dissolution was entered in October 2020,

and a parenting plan between the Mother and Father was 

established. By amended judgment, the trial court further ordered 

that the Grandmother’s visitation rights would continue to be 

enforced until modified by the court. 

The parents immediately sought complete elimination of the 

Grandmother’s court-ordered visitation, by filing a petition to 

“modify” the visitation, alleging multiple substantial, material,

and unanticipated changes in circumstances in support of 

modification. The Grandmother filed a motion to dismiss the 

petition, in which she argued that the parents failed to 

demonstrate such a change. 

In June 2021, the 2018 Kentucky visitation order was 

registered, and the parents filed an “Amended Supplemental 

Petition for Modification of Grandparent Visitation.” The parents 

alleged ten substantial, material, and unanticipated changes in 

circumstances.

A final hearing was held in December 2021. In their case-inchief, the parents testified to their divorce and resulting timesharing arrangement. The Mother submitted that the divorce was 

substantial and material because the parents now live in separate 

households. While the Mother was a stay-at-home parent prior to 

the divorce, by the time of the hearing, she maintained a full-time 

job outside of the home. 

The Mother further stated that she did not anticipate the 

parents’ divorce “until right around the time [she] filed for it.” She 

explained that her earlier comments, which may have implied that 

the parents were going to get divorced, were made out of anger. 

When asked if she “repeatedly told the Kentucky court that [the 

parents] were getting divorced,” the Mother answered: “No.” She 

stated that she felt that her marriage “was going well” when the 

2018 Kentucky visitation order was entered. The Father, on the 

other hand, never mentioned a divorce. He stated that he was not 

even aware that the Mother made such comments. However, the 

parents admitted to fighting over the financial burden and the 

stress caused by the overall litigation. 
5

As for the parents’ post-divorce time-sharing arrangement, 

the parents testified to their separate households and the 

diminished time that each parent gets to spend with E.M.M. as a 

result. The Mother has custody of E.M.M. during the week and the 

Father has custody during the weekends. The Father attempted to 

rectify the visitation issues between the Mother and the 

Grandmother by allowing the Grandmother to visit with E.M.M. 

during his parenting time. However, the Grandmother was not 

satisfied because the Father’s parenting time alone did not allow 

for the total amount of visitation to which the Grandmother was 

entitled.

After the parents rested, the Grandmother moved for 

involuntary dismissal. She argued that the parents had not met 

their burden of showing a substantial, material, and unanticipated 

change in circumstances. The parents countered that, while the 

Grandmother’s interference in their parenting has been ongoing 

for years, their parenting decisions have evolved as E.M.M. grew 

older. They also submitted that a divorce and resulting timesharing arrangement was “as good [of a substantial change] as it 

gets.”

The trial court dismissed the parents’ petition for modification 

of grandparent visitation. In the final judgment, the trial court 

explained its reasoning as follows: 

Although the parents now live separate lives and the 

minor child rotates between their two houses pursuant to 

a parenting plan, the mother has previously advised the 

Court in Kentucky, prior to 2018, that the stress of 

grandparent visitation would likely lead to the parents’ 

divorce. The divorce of the parents was not unanticipated 

and is not material in nature. The court finds that there 

is no reason why the parents’ divorce should impact the 

grandmother’s court-ordered visitation.

This appeal follows. 
6

II

A

The right to grandparent visitation is far broader in Kentucky 

than it is in Florida. Compare Ky. Rev. Stat. § 405.021, with

§ 752.011, Fla. Stat. In Kentucky a grandparent may be granted 

visitation rights as long as a court “determines that it is in the best 

interest of the child to do so.” Ky. Rev. Stat. § 405.021(1)(a). This 

statute apparently permits a grandparent to obtain an order 

forcing even married parents who both live with their child to 

surrender the child to the grandparent against their wishes, as 

happened here. This procedure appears to have made a strained 

relationship worse, resulting in court orders defied by the parents, 

which in turn resulted in the Grandmother having her own 

daughter and son-in-law thrown in jail. 

The Kentucky policy regarding grandparent visitation rights 

plainly conflicts with Florida’s.2 Florida’s supreme court has 

interpreted our state constitution to include “a natural parent’s 

right to rear his or her own child” without “unwarranted 

governmental interference.” Richardson v. Richardson, 766 So. 2d 

1036, 1043 (Fla. 2000). Applying this principle, the supreme court 

repeatedly has invalidated statutory provisions that give some 

preference to grandparent visitation rights that interfere with a 

parent’s “longstanding and fundamental liberty interest of parents 

in determining the care and upbringing of their children free from 

the heavy hand of government paternalism.” Beagle v. Beagle, 678 

So. 2d 1271, 1275 (Fla. 1996) (citing Padgett v. Dep’t of Health &

Rehab. Serv., 577 So. 2d 565, 570 (Fla. 1991)). The supreme court 

2 There was a time when Florida’s law was similar to 

Kentucky’s, allowing a court to “award the grandparents visitation 

rights of a minor child if it is deemed to be in the child’s best 

interest.” § 61.13(2)(b)2.c., Fla. Stat. (2004). But over time, as 

noted herein, grandparent visitation laws have been curtailed.

Like the other statutory provisions regarding grandparent 

visitation noted herein, this specific statutory provision was 

declared unconstitutional. Sullivan v. Sapp, 866 So. 2d 28 (Fla. 

2004).
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has enforced this interest through the Florida Constitution’s 

privacy guarantee.

Accordingly, a statute permitting a court to award visitation 

rights to a grandparent, even when the minor is living with both 

natural parents who are still married, and based only on the best 

interest of the minor child, has been held unconstitutional. Beagle, 

678 So. 2d at 1276; see also Von Eiff v. Azicri, 720 So. 2d 510, 514

(Fla. 1998) (holding another provision permitting grandparent 

visitation when one or both parents are deceased, based solely on 

the best interest of the minor child, without first requiring proof of 

demonstrable harm to the child, was unconstitutional); Saul v. 

Brunetti, 753 So. 2d 26, 28–9 (Fla. 2000) (reaching the same 

conclusion with respect to a provision permitting grandparent 

visitation when the child was born out of wedlock). In Richardson 

our supreme court struck down a statute that permitted a court to 

“recognize the grandparents as having the same standing as 

parents for evaluating what custody arrangements are in the best 

interest of the child,” finding it a violation of parents’ state 

constitutional right to rear their children. 766 So. 2d at 1038. But

in spite of this recognized right, it is not for us to question the 

wisdom of either the Kentucky grandparent visitation law or the 

Kentucky court orders granting it to the Grandmother. This is a 

consequence of the Full Faith and Credit Clause of the United 

States Constitution. Specifically, the supreme court has recognized 

that the out-of-state orders awarding grandparents child visitation 

are entitled to enforcement under the Full Faith and Credit 

Clause. Ledoux-Nottingham v. Downs, 210 So. 3d 1217, 1221 (Fla. 

2017). This brings us to the case before us.

B

The parents argue that the trial court committed several 

errors in dismissing their petition to modify the 2018 Kentucky 

visitation order. We review the trial court’s dismissal de novo. See 

Korkmaz v. Korkmaz, 200 So. 3d 263, 265 (Fla. 1st DCA 2016); 

Alence v. Matheson, 351 So. 3d 1265, 1269 (Fla. 2d DCA 2022) 

(quoting Mendez v. Mendez Lopez, 271 So. 3d 72, 73 (Fla. 3d DCA 

2019)).
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When considering the involuntary dismissal of a petition for a 

custody modification we consider the same law that is “applicable 

to a motion for directed verdict.” Foster v. City of Gainesville, 579 

So. 2d 774, 776 (Fla. 1st DCA 1991) (citation omitted). “Thus, if the 

[parents] . . . established a prima facie case, the court was required 

to deny the motion.” Id. (citations omitted). When determining if a 

prima facie case was made, the facts are viewed in the light most 

favorable to the parents. Id. 

C

“In seeking a modification of custody, the movant must show 

both that the circumstances have substantially, materially 

changed since the original custody determination and that the 

child’s best interests justify changing custody.” Ogilvie v. Ogilvie, 

954 So. 2d 698, 700 (Fla. 1st DCA 2007) (citation omitted). The 

parents, however, argue that this case does not deal with E.M.M.’s 

custody. We disagree. 

In their amended petition, the parents asked the trial court to 

“Enter a Supplemental Order Modifying the current Order of this 

Court permitting grandparent visitation, and replace it with the 

parenting plan agreed to by the parents, which entirely removes 

the grandparent visitation[.]” In seeking the modification of the 

trial court’s previous judgment of dissolution and parenting plan, 

the parents were, in effect, asking the trial court to make a child 

custody determination. See § 61.046(14)(c), Fla. Stat. (“For 

purposes of the Uniform Child Custody Jurisdiction and 

Enforcement Act, part II of this chapter, a judgment or order 

incorporating a parenting plan under this part is a child custody 

determination under part II of this chapter.”). Thus, the parents 

had to satisfy the burden of modifying a custody determination. 

They failed to do so. 

The parents argued that their divorce was the substantial and 

material change in circumstance that warranted the modification 

of the custody order to remove the Grandmother’s visitation. But 

we previously held that “the substantial change must be one that 

was not reasonably contemplated at the time of the original

judgment.” Cooper v. Gress, 854 So. 2d 262, 267 (Fla. 1st DCA 

2003). The trial court utilized the 2018 Kentucky order as the 
9

“original” judgment to determine if the divorce was a substantial 

and material change, rather than the dissolution judgment. Even 

if we considered the 2018 Kentucky order the original judgment, 

we conclude that competent, substantial evidence supports the 

trial court’s finding that “[t]he divorce of the parents was not 

unanticipated and is not material or substantial in nature[,]” and 

that “there [was] no reason why the parents’ divorce should impact 

the grandmother’s court-ordered visitation.” And because 

modification was not warranted in this case, we may end the 

inquiry there. See Ogilvie, 954 So. 2d at 700 (holding that only if 

modification is warranted does a court need to consider the best 

interest of the child prong). 

Even if we agreed that the divorce was a substantial and 

material change since the 2018 order, we are still obligated to 

affirm because the parents failed to present any evidence that the 

modification was in the best interest of E.M.M. See cf. Holland v. 

Holland, 140 So. 3d 1155, 1157 (Fla. 1st DCA 2014) (reversing the 

modification of a time-sharing agreement because the trial court 

did not make findings as to the best interest of the child).3

Accordingly, we affirm the trial court’s judgment dismissing 

the parents’ amended petition to modify the Grandmother’s 

visitation.

AFFIRMED. 

TANENBAUM, J., concurs; ROBERTS, J., dissents.

3 In reaching this conclusion, we recognize that the parents 

argued that the court erred in excluding evidence they claim could 

have established that the child’s best interests would be served by 

a modification. We reject that argument as well. 
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_____________________________

Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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Susan J. Silverman, Sarasota, for Appellants.

Linda A. Bailey of the Law Office of Linda A. Bailey, P.A., 

Tallahassee, for Appellee.