Florida Statutes 39.0139 – Visitation or other contact; restrictions
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(1) SHORT TITLE.–This section may be cited as the “Keeping Children Safe Act.”
(2) LEGISLATIVE FINDINGS AND INTENT.–
(a) The Legislature finds that:
1. For some children who are abused, abandoned, or neglected by a parent or other caregiver, abuse may include sexual abuse.
2. These same children are at risk of suffering from further harm during visitation or other contact.
3. Visitation or other contact with the child may be used to influence the child’s testimony.
Terms Used In Florida Statutes 39.0139
- Abuse: means any willful act or threatened act that results in any physical, mental, or sexual abuse, injury, or harm that causes or is likely to cause the child's physical, mental, or emotional health to be significantly impaired. See Florida Statutes 39.01
- Affidavit: A written statement of facts confirmed by the oath of the party making it, before a notary or officer having authority to administer oaths.
- Attorney ad litem: means an attorney appointed by the court to represent a child in a dependency case who has an attorney-client relationship with the child under the rules regulating The Florida Bar. See Florida Statutes 39.01
- Caregiver: means the parent, legal custodian, permanent guardian, adult household member, or other person responsible for a child's welfare as defined in subsection (57). See Florida Statutes 39.01
- Chief judge: The judge who has primary responsibility for the administration of a court but also decides cases; chief judges are determined by seniority.
- Child Protection Team: means a team of professionals established by the Department of Health to receive referrals from the protective investigators and protective supervision staff of the department and to provide specialized and supportive services to the program in processing child abuse, abandonment, or neglect cases. See Florida Statutes 39.01
- Circuit: means any of the 20 judicial circuits as set forth in…. See Florida Statutes 39.01
- Conviction: A judgement of guilt against a criminal defendant.
- Department: means the Department of Children and Families. See Florida Statutes 39.01
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Guardian: A person legally empowered and charged with the duty of taking care of and managing the property of another person who because of age, intellect, or health, is incapable of managing his (her) own affairs.
- Guardian: means a relative, nonrelative, next of kin, or fictive kin who is awarded physical custody of a child in a proceeding brought pursuant to this chapter. See Florida Statutes 39.01
- Guardian ad litem: means a person or an entity that is a fiduciary appointed by the court to represent a child in any civil, criminal, or administrative proceeding to which the child is a party, including, but not limited to, under this chapter, which uses a best interest standard for decisionmaking and advocacy. See Florida Statutes 39.01
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- Nolo contendere: No contest-has the same effect as a plea of guilty, as far as the criminal sentence is concerned, but may not be considered as an admission of guilt for any other purpose.
- Parent: means a woman who gives birth to a child and a man whose consent to the adoption of the child would be required under…. See Florida Statutes 39.01
- Party: means the parent or parents of the child, the petitioner, the department, the guardian ad litem, and the child. See Florida Statutes 39.01
- person: includes individuals, children, firms, associations, joint adventures, partnerships, estates, trusts, business trusts, syndicates, fiduciaries, corporations, and all other groups or combinations. See Florida Statutes 1.01
- Plea: In a criminal case, the defendant's statement pleading "guilty" or "not guilty" in answer to the charges, a declaration made in open court.
- Probable cause: A reasonable ground for belief that the offender violated a specific law.
- Testimony: Evidence presented orally by witnesses during trials or before grand juries.
- Victim: means any child who has sustained or is threatened with physical, mental, or emotional injury identified in a report involving child abuse, neglect, or abandonment, or child-on-child sexual abuse. See Florida Statutes 39.01
(b) It is the intent of the Legislature to protect children and reduce the risk of further harm to children who have been sexually abused or exploited by a parent or other caregiver by placing additional requirements on judicial determinations related to contact between a parent or caregiver who meets the criteria under paragraph (3)(a) and a child victim in any proceeding pursuant to this chapter.
(3) PRESUMPTION OF DETRIMENT.–
(a) A rebuttable presumption of detriment to a child is created when:
1. A court of competent jurisdiction has found probable cause exists that a parent or caregiver has sexually abused a child as defined in s. 39.01;
2. A parent or caregiver has been found guilty of, regardless of adjudication, or has entered a plea of guilty or nolo contendere to, charges under the following statutes or substantially similar statutes of other jurisdictions:
a. Section 787.04, relating to removing minors from the state or concealing minors contrary to court order;
b. Section 794.011, relating to sexual battery;
c. Section 798.02, relating to lewd and lascivious behavior;
d. Chapter 800, relating to lewdness and indecent exposure;
e. Section 826.04, relating to incest; or
f. Chapter 827, relating to the abuse of children; or
3. A court of competent jurisdiction has determined a parent or caregiver to be a sexual predator as defined in s. 775.21 or a parent or caregiver has received a substantially similar designation under laws of another jurisdiction.
(b) For purposes of this subsection, “substantially similar” has the same meaning as in s. 39.806(1)(d)2.
(c) A person who meets any of the criteria set forth in paragraph (a) may not visit or have contact with a child without a hearing and order by the court.
(4) HEARINGS.–A person who meets any of the criteria set forth in paragraph (3)(a) who seeks to begin or resume contact with the child victim shall have the right to an evidentiary hearing to determine whether contact is appropriate.
(a) Before the hearing, the court shall appoint a guardian ad litem for the child if one has not already been appointed. The guardian ad litem and attorney ad litem, if one is appointed, must have special training in the dynamics of child sexual abuse.
(b) At the hearing, the court may receive and rely upon any relevant and material evidence submitted to the extent of its probative value, including written and oral reports or recommendations from the Child Protection Team, the child’s therapist, the child’s guardian ad litem, or the child’s attorney ad litem, if one is appointed, even if these reports, recommendations, and evidence may not be admissible under the rules of evidence.
(c) If the court finds the person proves by clear and convincing evidence that the safety, well-being, and physical, mental, and emotional health of the child is not endangered by such visitation or other contact, the presumption in subsection (3) is rebutted and the court may allow visitation or other contact. The court shall enter a written order setting forth findings of fact and specifying any conditions it finds necessary to protect the child.
(d) If the court finds the person did not rebut the presumption established in subsection (3), the court shall enter a written order setting forth findings of fact and prohibiting or restricting visitation or other contact with the child.
(5) CONDITIONS.–Any visitation or other contact ordered under paragraph (4)(d) shall be:
(a) Supervised by a person who has previously received special training in the dynamics of child sexual abuse; or
(b) Conducted in a supervised visitation program, provided that the program has an agreement with the court and a current affidavit of compliance on file with the chief judge of the circuit in which the program is located affirming that the program has agreed to comply with the minimum standards contained in the administrative order issued by the Chief Justice of the Supreme Court on November 17, 1999, and provided the program has a written agreement with the court and with the department as described in s. 753.05 containing policies and guidelines specifically related to referrals involving child sexual abuse.
(6) ADDITIONAL CONSIDERATIONS.–
(a) Once a rebuttable presumption of detriment has arisen under subsection (3) or if visitation is ordered under subsection (4) and a party or participant, based on communication with the child or other firsthand knowledge, informs the court that a person is attempting to influence the testimony of the child, the court shall hold a hearing within 7 business days to determine whether it is in the best interests of the child to prohibit or restrict visitation or other contact with the person who is alleged to have influenced the testimony of the child.
(b) If a child is in therapy as a result of any finding or conviction contained in paragraph (3)(a) and the child’s therapist reports that the visitation or other contact is impeding the child’s therapeutic progress, the court shall convene a hearing within 7 business days to review the terms, conditions, or appropriateness of continued visitation or other contact.