Senate Bill sb0248c1
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Florida Senate - 2001 CS for SB 248
By the Committee on Children and Families; and Senator
Saunders
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1 A bill to be entitled
2 An act relating to domestic violence; amending
3 ss. 25.385, 39.902, 741.28, 943.171, F.S.;
4 redefining the terms "domestic violence" and
5 "family or household member"; amending s.
6 28.101, F.S.; increasing the fee charged by the
7 clerk of the circuit court in dissolution of
8 marriage cases; providing that the fee be
9 deposited in the Domestic Violence Trust Fund;
10 amending s. 61.1825, F.S.; providing for
11 additional circumstances when a family violence
12 indicator must be placed on a record; amending
13 s. 741.281, F.S.; deleting requirement that a
14 court order certain defendants to attend a
15 batterers' intervention program; amending s.
16 741.30, F.S.; specifying when a person has
17 standing to file a petition for an injunction
18 against domestic violence; providing for
19 incidents that describe violence or threats of
20 violence; specifying when a court may grant
21 relief; providing factors for the court to
22 consider in determining imminent danger;
23 providing for recording of proceedings;
24 providing an effective date.
25
26 Be It Enacted by the Legislature of the State of Florida:
27
28 Section 1. Subsection (2) of section 25.385, Florida
29 Statutes, is amended to read:
30 25.385 Standards for instruction of circuit and county
31 court judges in handling domestic violence cases.--
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1 (2) As used in this section:
2 (a) The term "domestic violence" means any assault,
3 battery, sexual assault, sexual battery, or any criminal
4 offense resulting in physical injury or death of one family or
5 household member by another, who is or was residing in the
6 same single dwelling unit. With the exception of persons who
7 have a child in common, the family or household members must
8 be currently residing or have in the past resided together in
9 the same single dwelling unit.
10 (b) "Family or household member" means spouse, former
11 spouse, persons related by blood or marriage, persons who are
12 presently residing together, as if a family, or who have
13 resided together in the past, as if a family, and persons who
14 have a child in common regardless of whether they have been
15 married or have resided together at any time. With the
16 exception of persons who have a child in common, the family or
17 household members must be currently residing or have in the
18 past resided together in the same single dwelling unit.
19 Section 2. Subsections (1) and (3) of section 39.902,
20 Florida Statutes, are amended to read:
21 39.902 Definitions.--As used in this part, the term:
22 (1) "Domestic violence" means any assault, battery,
23 sexual assault, sexual battery, or any criminal offense
24 resulting in physical injury or death of one family or
25 household member by another who is or was residing in the same
26 single dwelling unit. With the exception of persons who have a
27 child in common, the family or household members must be
28 currently residing or have in the past resided together in the
29 same single dwelling unit.
30 (3) "Family or household member" means spouses, former
31 spouses, adults related by blood or marriage, persons who are
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1 presently residing together as if a family or who have resided
2 together in the past as if a family, and persons who have a
3 child in common regardless of whether they have been married
4 or have resided together at any time. With the exception of
5 persons who have a child in common, the family or household
6 members must be currently residing or have in the past resided
7 together in the same single dwelling unit.
8 Section 3. Subsections (1) and (2) of section 741.28,
9 Florida Statutes, are amended to read:
10 741.28 Domestic violence; definitions.--As used in ss.
11 741.28-741.31:
12 (1) "Domestic violence" means any assault, aggravated
13 assault, battery, aggravated battery, sexual assault, sexual
14 battery, stalking, aggravated stalking, kidnapping, false
15 imprisonment, or any criminal offense resulting in physical
16 injury or death of one family or household member by another
17 who is or was residing in the same single dwelling unit. With
18 the exception of persons who have a child in common, the
19 family or household members must be currently residing or have
20 in the past resided together in the same single dwelling unit.
21 (2) "Family or household member" means spouses, former
22 spouses, persons related by blood or marriage, persons who are
23 presently residing together as if a family or who have resided
24 together in the past as if a family, and persons who have a
25 child in common regardless of whether they have been married
26 or have resided together at any time. With the exception of
27 persons who have a child in common, the family or household
28 members must be currently residing or have in the past resided
29 together in the same single dwelling unit.
30 Section 4. Subsection (2) of section 943.171, Florida
31 Statutes, is amended to read:
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1 943.171 Basic skills training in handling domestic
2 violence cases.--
3 (2) As used in this section, the term:
4 (a) "Domestic violence" means any assault, battery,
5 sexual assault, sexual battery, or any criminal offense
6 resulting in the physical injury or death of one family or
7 household member by another who is or was residing in the same
8 single dwelling unit. With the exception of persons who have a
9 child in common, the family or household members must be
10 currently residing or have in the past resided together in the
11 same single dwelling unit.
12 (b) "Household member" means spouse, former spouse,
13 persons related by blood or marriage, persons who are
14 presently residing together, as if a family, or who have
15 resided together in the past, as if a family, and persons who
16 have a child in common regardless of whether they have been
17 married or have resided together at any time. With the
18 exception of persons who have a child in common, the family or
19 household members must be currently residing or have in the
20 past resided together in the same single dwelling unit.
21 Section 5. Paragraph (c) of subsection (1) of section
22 28.101, Florida Statutes, is amended to read:
23 28.101 Petitions and records of dissolution of
24 marriage; additional charges.--
25 (1) When a party petitions for a dissolution of
26 marriage, in addition to the filing charges in s. 28.241, the
27 clerk shall collect and receive:
28 (c) A charge of $36 $18. On a monthly basis, the
29 clerk shall transfer the moneys collected pursuant to this
30 paragraph to the State Treasury for deposit in the Domestic
31 Violence Trust Fund. Such funds which are generated shall be
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1 directed to the Department of Children and Family Services for
2 the specific purpose of funding domestic violence centers.
3 Section 6. Subsection (3) of section 61.1825, Florida
4 Statutes, is amended to read:
5 61.1825 State Case Registry.--
6 (3)(a) For the purpose of this section, a family
7 violence indicator must be placed on a record when:
8 1. A party executes a sworn statement requesting that
9 a family violence indicator be placed on that party's record
10 which states that the party has reason to believe that release
11 of information to the Federal Case Registry may result in
12 physical or emotional harm to the party or the child;.
13 2. A temporary or final injunction for protection
14 against domestic violence has been granted pursuant to s.
15 741.30(6), an injunction for protection against domestic
16 violence has been issued by a court of a foreign state
17 pursuant to s. 741.315, or a temporary or final injunction for
18 protection against repeat violence has been granted pursuant
19 to s. 784.046; or
20 3. The department has received information on a Title
21 IV-D case from the Domestic and Repeat Violence Injunction
22 Statewide Verification System, established pursuant to s.
23 784.046(8)(b), that a court has granted a party a
24 domestic-violence or repeat-violence injunction.
25 (b) Before the family violence indicator can be
26 removed from a record, the protected person must be afforded
27 notice and an opportunity to appear before the court on the
28 issue of whether the disclosure will result in harm.
29 Section 7. Section 741.281, Florida Statutes, is
30 amended to read:
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1 741.281 Court to order batterers' intervention program
2 attendance.--If a person is found guilty of, has had
3 adjudication withheld on, or has pled nolo contendere to a
4 crime of domestic violence, as defined in s. 741.28, that
5 person shall be ordered by the court to a minimum term of 1
6 year's probation and the court shall order that the defendant
7 attend a batterers' intervention program as a condition of
8 probation. If a person is admitted to a pretrial diversion
9 program and has been charged with an act of domestic violence,
10 as defined in s. 741.28, the court shall order as a condition
11 of the program that the defendant attend a batterers'
12 intervention program. The court must impose the condition of
13 the batterers' intervention program for a defendant placed on
14 probation or pretrial diversion under this section, but the
15 court, in its discretion, may determine not to impose the
16 condition if it states on the record why a batterers'
17 intervention program might be inappropriate. It is preferred,
18 but not mandatory, that such programs be certified under s.
19 741.32. The imposition of probation under this section shall
20 not preclude the court from imposing any sentence of
21 imprisonment authorized by s. 775.082.
22 Section 8. Subsections (1), (3), and (6) of section
23 741.30, Florida Statutes, are amended and subsection (10) is
24 added to that section to read:
25 741.30 Domestic violence; injunction; powers and
26 duties of court and clerk; petition; notice and hearing;
27 temporary injunction; issuance of injunction; statewide
28 verification system; enforcement.--
29 (1) There is created a cause of action for an
30 injunction for protection against domestic violence.
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1 (a) Any person described in paragraph (e), who is
2 either the victim of any act of domestic violence as defined
3 in s. 741.28, or has reasonable cause to believe he or she is
4 in imminent danger of becoming the victim of any act of
5 domestic violence, has standing in the circuit court to file a
6 sworn petition for an injunction for protection against
7 domestic violence.
8 (b) This cause of action for an injunction may be
9 sought whether or not any other cause of action is currently
10 pending between the parties. However, the pendency of any such
11 cause of action shall be alleged in the petition.
12 (c) In the event a subsequent cause of action is filed
13 under chapter 61, any orders entered therein shall take
14 precedence over any inconsistent provisions of an injunction
15 issued under this section which addresses matters governed by
16 chapter 61.
17 (d) A person's right to petition for an injunction
18 shall not be affected by such person having left a residence
19 or household to avoid domestic violence.
20 (e) This cause of action for an injunction may be
21 sought by family or household members. No person shall be
22 precluded from seeking injunctive relief pursuant to this
23 chapter solely on the basis that such person is not a spouse.
24 (f) This cause of action for an injunction shall not
25 require that either party be represented by an attorney.
26 (g) Any person, including an officer of the court, who
27 offers evidence or recommendations relating to the cause of
28 action must either present the evidence or recommendations in
29 writing to the court with copies to each party and their
30 attorney, or must present the evidence under oath at a hearing
31 at which all parties are present.
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1 (h) Nothing in this section shall affect the title to
2 any real estate.
3 (i) The court is prohibited from issuing mutual orders
4 of protection. This does not preclude the court from issuing
5 separate injunctions for protection against domestic violence
6 where each party has complied with the provisions of this
7 section. Compliance with the provisions of this section cannot
8 be waived.
9 (3)(a) The sworn petition shall allege the existence
10 of such domestic violence and shall include the specific facts
11 and circumstances upon the basis of which relief is sought.
12 (b) The sworn petition shall be in substantially the
13 following form:
14
15 PETITION FOR
16 INJUNCTION FOR PROTECTION
17 AGAINST DOMESTIC VIOLENCE
18
19 Before me, the undersigned authority, personally appeared
20 Petitioner ...(Name)..., who has been sworn and says that the
21 following statements are true:
22 (a) Petitioner resides at: ...(address)...
23 (Petitioner may furnish address to the court in a
24 separate confidential filing if, for safety reasons, the
25 petitioner requires the location of the current residence to
26 be confidential.)
27 (b) Respondent resides at: ...(last known address)...
28 (c) Respondent's last known place of employment:
29 ...(name of business and address)...
30 (d) Physical description of respondent: ....
31 Race....
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1 Sex....
2 Date of birth....
3 Height....
4 Weight....
5 Eye color....
6 Hair color....
7 Distinguishing marks or scars....
8 (e) Aliases of respondent: ....
9 (f) Respondent is the spouse or former spouse of the
10 petitioner or is any other person related by blood or marriage
11 to the petitioner or is any other person who is or was
12 residing within a single dwelling unit with the petitioner, as
13 if a family, or is a person with whom the petitioner has a
14 child in common, regardless of whether the petitioner and
15 respondent are or were married or residing together, as if a
16 family.
17 (g) The following describes any other cause of action
18 currently pending between the petitioner and respondent: .....
19 ..............................................................
20 The petitioner should also describe any previous or
21 pending attempts by the petitioner to obtain an injunction for
22 protection against domestic violence in this or any other
23 circuit, and the results of that attempt......................
24 ..............................................................
25 Case numbers should be included if available.
26 (h) Petitioner is either a victim of domestic violence
27 has suffered or has reasonable cause to fear imminent domestic
28 violence because respondent has (check off all that apply and
29 describe in the spaces below the incidents of violence or
30 threats of violence, specifying when and where they occurred,
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1 including locations such as a home, school, place of
2 employment, or visitation exchange): .........................
3 ....committed or threatened to commit domestic violence
4 defined in s. 741.28 as any assault, aggravated assault,
5 battery, aggravated battery, sexual assault, sexual battery,
6 stalking, aggravated stalking, kidnapping, false imprisonment,
7 or any criminal offense resulting in physical injury or death
8 of one family or household member by another. With the
9 exception of persons who have a child in common, the family or
10 household members must be currently residing or have in the
11 past resided together in the same dwelling unit;
12 ....previously threatened, harassed, stalked, or
13 physically abused the petitioner;
14 ....attempted to harm the petitioner or family members
15 or individuals associated with the petitioner;
16 ....threatened to conceal, kidnap, or harm the
17 petitioner's child(ren);
18 ....intentionally injured or killed a family pet;
19 ....used, or has threatened to use against the
20 petitioner any weapons such as guns or knives;
21 ....physically restrained the petitioner from leaving
22 the home or calling law enforcement;
23 ....a criminal history involving violence or the threat
24 of violence (if known);
25 ....another order of protection issued against him or
26 her previously or from another jurisdiction (if known);
27 ....engaged in any other behavior or conduct that leads
28 the petitioner to believe he or she is in danger of becoming a
29 victim of domestic violence.
30 (i) Petitioner alleges the following additional
31 specific facts: (mark appropriate sections)
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1 ....Petitioner is the custodian of a minor child or
2 children whose names and ages are as follows: ................
3 ....Petitioner needs the exclusive use and possession
4 of the dwelling that the parties share.
5 ....Petitioner is unable to obtain safe alternative
6 housing because: .............................................
7 ....Petitioner genuinely fears that respondent
8 imminently will abuse, remove, or hide the minor child or
9 children from petitioner because: ............................
10 ..............................................................
11 (j) Petitioner genuinely fears imminent domestic
12 violence by respondent.
13 (k) Petitioner seeks an injunction: (mark appropriate
14 section or sections)
15 ....Immediately restraining the respondent from
16 committing any acts of domestic violence.
17 ....Restraining the respondent from committing any acts
18 of domestic violence.
19 ....Awarding to the petitioner the temporary exclusive
20 use and possession of the dwelling that the parties share or
21 excluding the respondent from the residence of the petitioner.
22 ....Awarding temporary custody of, or temporary
23 visitation rights with regard to, the minor child or children
24 of the parties, or prohibiting or limiting visitation to that
25 which is supervised by a third party.
26 ....Establishing temporary support for the minor child
27 or children or the petitioner.
28 ....Directing the respondent to participate in a
29 batterers' intervention program or other treatment pursuant to
30 s. 39.901.
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1 ....Providing any terms the court deems necessary for
2 the protection of a victim of domestic violence, or any minor
3 children of the victim, including any injunctions or
4 directives to law enforcement agencies.
5 (c) Every petition for an injunction against domestic
6 violence shall contain, directly above the signature line, a
7 statement in all capital letters and bold type not smaller
8 than the surrounding text, as follows:
9
10 I HAVE READ EVERY STATEMENT MADE IN THIS
11 PETITION AND EACH STATEMENT IS TRUE AND
12 CORRECT. I UNDERSTAND THAT THE STATEMENTS MADE
13 IN THIS PETITION ARE BEING MADE UNDER PENALTY
14 OF PERJURY, PUNISHABLE AS PROVIDED IN SECTION
15 837.02, FLORIDA STATUTES.
16 ...(initials)...
17
18 (d) If the sworn petition seeks to determine issues of
19 custody or visitation with regard to the minor child or
20 children of the parties, the sworn petition shall be
21 accompanied by or shall incorporate the allegations required
22 by s. 61.132 of the Uniform Child Custody Jurisdiction Act.
23 (6)(a) Upon notice and hearing, when it appears to the
24 court that the petitioner is either the victim of domestic
25 violence as defined by section 741.28, or has reasonable cause
26 to believe he or she is in imminent danger of becoming a
27 victim of domestic violence, the court may grant such relief
28 as the court deems proper, including an injunction:
29 1. Restraining the respondent from committing any acts
30 of domestic violence.
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1 2. Awarding to the petitioner the exclusive use and
2 possession of the dwelling that the parties share or excluding
3 the respondent from the residence of the petitioner.
4 3. On the same basis as provided in chapter 61,
5 awarding temporary custody of, or temporary visitation rights
6 with regard to, a minor child or children of the parties.
7 4. On the same basis as provided in chapter 61,
8 establishing temporary support for a minor child or children
9 or the petitioner.
10 5. Ordering the respondent to participate in
11 treatment, intervention, or counseling services to be paid for
12 by the respondent. When the court orders the respondent to
13 participate in a batterers' intervention program, the court,
14 or any entity designated by the court, must provide the
15 respondent with a list of all certified batterers'
16 intervention programs and all programs which have submitted an
17 application to the Department of Corrections to become
18 certified under s. 741.325, from which the respondent must
19 choose a program in which to participate. If there are no
20 certified batterers' intervention programs in the circuit, the
21 court shall provide a list of acceptable programs from which
22 the respondent must choose a program in which to participate.
23 6. Referring a petitioner to a certified domestic
24 violence center. The court must provide the petitioner with a
25 list of certified domestic violence centers in the circuit
26 which the petitioner may contact.
27 7. Ordering such other relief as the court deems
28 necessary for the protection of a victim of domestic violence,
29 including injunctions or directives to law enforcement
30 agencies, as provided in this section.
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1 (b) In determining whether a petitioner has reasonable
2 cause to believe he or she is in imminent danger of becoming a
3 victim of domestic violence, the court shall consider and
4 evaluate all relevant factors alleged in the petition,
5 including, but not limited to:
6 1. The history between the petitioner and the
7 respondent, including threats, harassment, stalking, and
8 physical abuse;
9 2. Whether the respondent has attempted to harm the
10 petitioner or family members or individuals closely associated
11 with the petitioner;
12 3. Whether the respondent has threatened to conceal,
13 kidnap, or harm the petitioner's child or children;
14 4. Whether the respondent has intentionally injured or
15 killed a family pet;
16 5. Whether the respondent has used, or has threatened
17 to use, against the petitioner any weapons such as guns or
18 knives;
19 6. Whether the respondent has physically restrained
20 the petitioner from leaving the home or calling law
21 enforcement;
22 7. Whether the respondent has a criminal history
23 involving violence or the threat of violence;
24 8. The existence of a verifiable order of protection
25 issued previously or from another jurisdiction; and
26 9. Any other behavior or conduct that leads the court
27 to believe that the petitioner is in danger of becoming a
28 victim of domestic violence.
29
30 In making its determination under this section, the court is
31 not limited to those factors enumerated in subparagraphs 1.-9.
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1 (c)(b) The terms of an injunction restraining the
2 respondent under subparagraph (a)1. or ordering other relief
3 for the protection of the victim under subparagraph (a)7.
4 shall remain in effect until modified or dissolved. Either
5 party may move at any time to modify or dissolve the
6 injunction. No specific allegations are required. Such relief
7 may be granted in addition to other civil or criminal
8 remedies.
9 (d)(c) A temporary or final judgment on injunction for
10 protection against domestic violence entered pursuant to this
11 section shall, on its face, indicate that:
12 1. The injunction is valid and enforceable in all
13 counties of the State of Florida.
14 2. Law enforcement officers may use their arrest
15 powers pursuant to s. 901.15(6) to enforce the terms of the
16 injunction.
17 3. The court had jurisdiction over the parties and
18 matter under the laws of Florida and that reasonable notice
19 and opportunity to be heard was given to the person against
20 whom the order is sought sufficient to protect that person's
21 right to due process.
22 4. The date respondent was served with the temporary
23 or final order, if obtainable.
24 (e)(d) An injunction for protection against domestic
25 violence entered pursuant to this section, on its face, may
26 order that the respondent attend a batterers' intervention
27 program as a condition of the injunction. Unless the court
28 makes written factual findings in its judgment or order which
29 are based on substantial evidence, stating why batterers'
30 intervention programs would be inappropriate, the court shall
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1 order the respondent to attend a batterers' intervention
2 program if:
3 1. It finds that the respondent willfully violated the
4 ex parte injunction;
5 2. The respondent, in this state or any other state,
6 has been convicted of, had adjudication withheld on, or pled
7 nolo contendere to a crime involving violence or a threat of
8 violence; or
9 3. The respondent, in this state or any other state,
10 has had at any time a prior injunction for protection entered
11 against the respondent after a hearing with notice.
12
13 It is mandatory that such programs be certified under s.
14 741.32.
15 (f)(e) The fact that a separate order of protection is
16 granted to each opposing party shall not be legally sufficient
17 to deny any remedy to either party or to prove that the
18 parties are equally at fault or equally endangered.
19 (g)(f) A final judgment on injunction for protection
20 against domestic violence entered pursuant to this section
21 must, on its face, indicate that it is a violation of s.
22 790.233, and a first degree misdemeanor, for the respondent to
23 have in his or her care, custody, possession, or control any
24 firearm or ammunition.
25 (h) All proceedings under this subsection are to be
26 recorded if the court chooses to provide for the recording and
27 has adequate existing court resources for any associated
28 costs. Recording may be by electronic means as provided by the
29 Rules of Judicial Administration. If the means to record the
30 proceedings are not available, the parties must be notified
31 prior to the full hearing.
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1 Section 9. This act shall take effect July 1, 2001.
2
3 STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
COMMITTEE SUBSTITUTE FOR
4 Senate Bill 248
5
6 Removes the prohibition to a party seeking a de novo review of
the domestic violence allegations considered by the court at
7 the final injunction hearing.
8 Retains the current standard by which a court may grant an ex
parte temporary injunction prior to a full hearing.
9
Removes intent language that the process of granting ex parte
10 temporary injunctions protect victims of domestic violence for
as long as the victim is in danger. The request of the Supreme
11 Court to adopt rules requiring extensions of the ex parte
temporary injunction when the sole reason for denying the
12 extension is that the respondent could not be served the
temporary restraining order and notice of hearing is removed.
13
Modifies one of the factors that can be considered by the
14 court in determining whether a petitioner is in imminent
danger of becoming a victim of domestic violence to require a
15 "close" association between the respondent who has attempted
to harm the petitioner or family members or individuals with
16 the petitioner.
17 Removes the prohibition to referring an injunction for
protection against domestic violence case to mediation or
18 alternative dispute resolution, either prior to the full
injunction hearing or after the hearing.
19
Replaces the definition delineated in s. 741.30(3)(h), F.S.,
20 for domestic violence as defined in s. 741.28, F.S., to
reflect the definition as amended by this bill.
21
Clarifies the direction to the court that its determination in
22 granting the injunction is not limited to the identified
factors for determining imminent danger.
23
Removes the direction to the Office of State Courts
24 Administrator to examine current court practices relative to
visitation and custody issues and granting of injunctions for
25 protection during the dissolution of marriage proceedings.
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