Senate Bill sb0248c2

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    Florida Senate - 2001                     CS for CS for SB 248

    By the Committees on Judiciary; Children and Families; and
    Senator Saunders




    308-1517-01

  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         61.1825, F.S.; providing for additional

  7         circumstances when a family violence indicator

  8         must be placed on a record; amending s.

  9         741.281, F.S.; deleting requirement that a

10         court order certain defendants to attend a

11         batterers' intervention program; amending s.

12         741.30, F.S.; specifying when a person has

13         standing to file a petition for an injunction

14         against domestic violence; providing for

15         incidents that describe violence or threats of

16         violence; specifying when a court may grant

17         relief; providing factors for the court to

18         consider in determining imminent danger;

19         providing for recording of proceedings;

20         providing an effective date.

21

22  Be It Enacted by the Legislature of the State of Florida:

23

24         Section 1.  Subsection (2) of section 25.385, Florida

25  Statutes, is amended to read:

26         25.385  Standards for instruction of circuit and county

27  court judges in handling domestic violence cases.--

28         (2)  As used in this section:

29         (a)  The term "domestic violence" has the meaning set

30  forth in s. 741.28 means any assault, battery, sexual assault,

31  sexual battery, or any criminal offense resulting in physical

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  1  injury or death of one family or household member by another,

  2  who is or was residing in the same single dwelling unit.

  3         (b)  "Family or household member" has the meaning set

  4  forth in 741.28 means spouse, former spouse, persons related

  5  by blood or marriage, persons who are presently residing

  6  together, as if a family, or who have resided together in the

  7  past, as if a family, and persons who have a child in common

  8  regardless of whether they have been married or have resided

  9  together at any time.

10         Section 2.  Subsections (1) and (3) of section 39.902,

11  Florida Statutes, are amended to read:

12         39.902  Definitions.--As used in this part, the term:

13         (1)  "Domestic violence" has the meaning as set forth

14  in s. 741.28 means any assault, battery, sexual assault,

15  sexual battery, 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.

18         (3)  "Family or household member" has the meaning set

19  forth in s. 741.28 means spouses, former spouses, adults

20  related by blood or marriage, persons who are presently

21  residing together as if a family or who have resided together

22  in the past as if a family, and persons who have a child in

23  common regardless of whether they have been married or have

24  resided together at any time.

25         Section 3.  Subsections (1) and (2) of section 741.28,

26  Florida Statutes, are amended to read:

27         741.28  Domestic violence; definitions.--As used in ss.

28  741.28-741.31:

29         (1)  "Domestic violence" means any assault, aggravated

30  assault, battery, aggravated battery, sexual assault, sexual

31  battery, stalking, aggravated stalking, kidnapping, false

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  1  imprisonment, or any criminal offense resulting in physical

  2  injury or death of one family or household member by another

  3  who is or was residing in the same single dwelling unit. With

  4  the exception of persons who have a child in common, the

  5  family or household members must be currently residing or have

  6  in the past resided together in the same single dwelling unit.

  7         (2)  "Family or household member" means spouses, former

  8  spouses, persons related by blood or marriage, persons who are

  9  presently residing together as if a family or who have resided

10  together in the past as if a family, and persons who have a

11  child in common regardless of whether they have been married

12  or have resided together at any time. With the exception of

13  persons who have a child in common, the family or household

14  members must be currently residing or have in the past resided

15  together in the same single dwelling unit.

16         Section 4.  Subsection (2) of section 943.171, Florida

17  Statutes, is amended to read:

18         943.171  Basic skills training in handling domestic

19  violence cases.--

20         (2)  As used in this section, the term:

21         (a)  "Domestic violence" has the meaning set forth in

22  s. 741.28 means any assault, battery, sexual assault, sexual

23  battery, or any criminal offense resulting in the physical

24  injury or death of one family or household member by another

25  who is or was residing in the same single dwelling unit.

26         (b)  "Household member" has the meaning set forth in s.

27  741.28 means spouse, former spouse, persons related by blood

28  or marriage, persons who are presently residing together, as

29  if a family, or who have resided together in the past, as if a

30  family, and persons who have a child in common regardless of

31

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  1  whether they have been married or have resided together at any

  2  time.

  3         Section 5.  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 6.  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 7.  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 have reasonable cause to believe he or she

29  is in imminent danger of becoming a victim of domestic

30  violence.

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  1         (i)  Petitioner alleges the following additional

  2  specific facts: (mark appropriate sections)

  3         ....Petitioner is the custodian of a minor child or

  4  children whose names and ages are as follows: ................

  5         ....Petitioner needs the exclusive use and possession

  6  of the dwelling that the parties share.

  7         ....Petitioner is unable to obtain safe alternative

  8  housing because: .............................................

  9         ....Petitioner genuinely fears that respondent

10  imminently will abuse, remove, or hide the minor child or

11  children from petitioner because: ............................

12  ..............................................................

13         (j)  Petitioner genuinely fears imminent domestic

14  violence by respondent.

15         (k)  Petitioner seeks an injunction: (mark appropriate

16  section or sections)

17         ....Immediately restraining the respondent from

18  committing any acts of domestic violence.

19         ....Restraining the respondent from committing any acts

20  of domestic violence.

21         ....Awarding to the petitioner the temporary exclusive

22  use and possession of the dwelling that the parties share or

23  excluding the respondent from the residence of the petitioner.

24         ....Awarding temporary custody of, or temporary

25  visitation rights with regard to, the minor child or children

26  of the parties, or prohibiting or limiting visitation to that

27  which is supervised by a third party.

28         ....Establishing temporary support for the minor child

29  or children or the petitioner.

30

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  1         ....Directing the respondent to participate in a

  2  batterers' intervention program or other treatment pursuant to

  3  s. 39.901.

  4         ....Providing any terms the court deems necessary for

  5  the protection of a victim of domestic violence, or any minor

  6  children of the victim, including any injunctions or

  7  directives to law enforcement agencies.

  8         (c)  Every petition for an injunction against domestic

  9  violence shall contain, directly above the signature line, a

10  statement in all capital letters and bold type not smaller

11  than the surrounding text, as follows:

12

13         I HAVE READ EVERY STATEMENT MADE IN THIS

14         PETITION AND EACH STATEMENT IS TRUE AND

15         CORRECT. I UNDERSTAND THAT THE STATEMENTS MADE

16         IN THIS PETITION ARE BEING MADE UNDER PENALTY

17         OF PERJURY, PUNISHABLE AS PROVIDED IN SECTION

18         837.02, FLORIDA STATUTES.

19                                        ...(initials)...

20

21         (d)  If the sworn petition seeks to determine issues of

22  custody or visitation with regard to the minor child or

23  children of the parties, the sworn petition shall be

24  accompanied by or shall incorporate the allegations required

25  by s. 61.132 of the Uniform Child Custody Jurisdiction Act.

26         (6)(a)  Upon notice and hearing, when it appears to the

27  court that the petitioner is either the victim of domestic

28  violence as defined by section 741.28, or has reasonable cause

29  to believe he or she is in imminent danger of becoming a

30  victim of domestic violence, the court may grant such relief

31  as the court deems proper, including an injunction:

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  1         1.  Restraining the respondent from committing any acts

  2  of domestic violence.

  3         2.  Awarding to the petitioner the exclusive use and

  4  possession of the dwelling that the parties share or excluding

  5  the respondent from the residence of the petitioner.

  6         3.  On the same basis as provided in chapter 61,

  7  awarding temporary custody of, or temporary visitation rights

  8  with regard to, a minor child or children of the parties.

  9         4.  On the same basis as provided in chapter 61,

10  establishing temporary support for a minor child or children

11  or the petitioner.

12         5.  Ordering the respondent to participate in

13  treatment, intervention, or counseling services to be paid for

14  by the respondent. When the court orders the respondent to

15  participate in a batterers' intervention program, the court,

16  or any entity designated by the court, must provide the

17  respondent with a list of all certified batterers'

18  intervention programs and all programs which have submitted an

19  application to the Department of Corrections to become

20  certified under s. 741.325, from which the respondent must

21  choose a program in which to participate. If there are no

22  certified batterers' intervention programs in the circuit, the

23  court shall provide a list of acceptable programs from which

24  the respondent must choose a program in which to participate.

25         6.  Referring a petitioner to a certified domestic

26  violence center. The court must provide the petitioner with a

27  list of certified domestic violence centers in the circuit

28  which the petitioner may contact.

29         7.  Ordering such other relief as the court deems

30  necessary for the protection of a victim of domestic violence,

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  1  including injunctions or directives to law enforcement

  2  agencies, as provided in this section.

  3         (b)  In determining whether a petitioner has reasonable

  4  cause to believe he or she is in imminent danger of becoming a

  5  victim of domestic violence, the court shall consider and

  6  evaluate all relevant factors alleged in the petition,

  7  including, but not limited to:

  8         1.  The history between the petitioner and the

  9  respondent, including threats, harassment, stalking, and

10  physical abuse;

11         2.  Whether the respondent has attempted to harm the

12  petitioner or family members or individuals closely associated

13  with the petitioner;

14         3.  Whether the respondent has threatened to conceal,

15  kidnap, or harm the petitioner's child or children;

16         4.  Whether the respondent has intentionally injured or

17  killed a family pet;

18         5.  Whether the respondent has used, or has threatened

19  to use, against the petitioner any weapons such as guns or

20  knives;

21         6.  Whether the respondent has physically restrained

22  the petitioner from leaving the home or calling law

23  enforcement;

24         7.  Whether the respondent has a criminal history

25  involving violence or the threat of violence;

26         8.  The existence of a verifiable order of protection

27  issued previously or from another jurisdiction; and

28         9.  Whether the respondent engaged in any other

29  behavior or conduct that leads the petitioner to have

30  reasonable cause to believe that he or she is in imminent

31  danger of becoming a victim of domestic violence.

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  1

  2  In making its determination under this section, the court is

  3  not limited to those factors enumerated in subparagraphs 1.-9.

  4         (c)(b)  The terms of an injunction restraining the

  5  respondent under subparagraph (a)1. or ordering other relief

  6  for the protection of the victim under subparagraph (a)7.

  7  shall remain in effect until modified or dissolved. Either

  8  party may move at any time to modify or dissolve the

  9  injunction. No specific allegations are required. Such relief

10  may be granted in addition to other civil or criminal

11  remedies.

12         (d)(c)  A temporary or final judgment on injunction for

13  protection against domestic violence entered pursuant to this

14  section shall, on its face, indicate that:

15         1.  The injunction is valid and enforceable in all

16  counties of the State of Florida.

17         2.  Law enforcement officers may use their arrest

18  powers pursuant to s. 901.15(6) to enforce the terms of the

19  injunction.

20         3.  The court had jurisdiction over the parties and

21  matter under the laws of Florida and that reasonable notice

22  and opportunity to be heard was given to the person against

23  whom the order is sought sufficient to protect that person's

24  right to due process.

25         4.  The date respondent was served with the temporary

26  or final order, if obtainable.

27         (e)(d)  An injunction for protection against domestic

28  violence entered pursuant to this section, on its face, may

29  order that the respondent attend a batterers' intervention

30  program as a condition of the injunction. Unless the court

31  makes written factual findings in its judgment or order which

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  1  are based on substantial evidence, stating why batterers'

  2  intervention programs would be inappropriate, the court shall

  3  order the respondent to attend a batterers' intervention

  4  program if:

  5         1.  It finds that the respondent willfully violated the

  6  ex parte injunction;

  7         2.  The respondent, in this state or any other state,

  8  has been convicted of, had adjudication withheld on, or pled

  9  nolo contendere to a crime involving violence or a threat of

10  violence; or

11         3.  The respondent, in this state or any other state,

12  has had at any time a prior injunction for protection entered

13  against the respondent after a hearing with notice.

14

15  It is mandatory that such programs be certified under s.

16  741.32.

17         (f)(e)  The fact that a separate order of protection is

18  granted to each opposing party shall not be legally sufficient

19  to deny any remedy to either party or to prove that the

20  parties are equally at fault or equally endangered.

21         (g)(f)  A final judgment on injunction for protection

22  against domestic violence entered pursuant to this section

23  must, on its face, indicate that it is a violation of s.

24  790.233, and a first degree misdemeanor, for the respondent to

25  have in his or her care, custody, possession, or control any

26  firearm or ammunition.

27         (h)  All proceedings under this subsection are to be

28  recorded if the court chooses to provide for the recording and

29  has adequate existing court resources for any associated

30  costs. Recording may be by electronic means as provided by the

31  Rules of Judicial Administration. If the means to record the

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  1  proceedings are not available, the parties must be notified

  2  prior to the full hearing.

  3         Section 8.  This act shall take effect July 1, 2001.

  4

  5          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  6                            CS/SB 248

  7

  8  Clarifies that for purposes of judicial and law enforcement
    training, and for securing a domestic violence injunction, the
  9  terms "domestic violence" and "family or household member" as
    contained in sections 25.385, 39.902, and 943.171, shall be
10  defined by cross-reference to the corresponding definitions in
    s. 741.28, F.S., as amended by the bill.
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    Clarifies that the reasonable cause-to-believe standard is
12  "imminent danger" for purposes of a domestic violence
    injunction.
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