Senate Bill sb0248e1
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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 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 amending s. 28.101, F.S.; increasing an
21 additional charge on a dissolution of marriage
22 petition to $36; providing an effective date.
23
24 Be It Enacted by the Legislature of the State of Florida:
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26 Section 1. Subsection (2) of section 25.385, Florida
27 Statutes, is amended to read:
28 25.385 Standards for instruction of circuit and county
29 court judges in handling domestic violence cases.--
30 (2) As used in this section:
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1 (a) The term "domestic violence" has the meaning set
2 forth in s. 741.28 means any assault, battery, sexual assault,
3 sexual battery, or any criminal offense resulting in physical
4 injury or death of one family or household member by another,
5 who is or was residing in the same single dwelling unit.
6 (b) "Family or household member" has the meaning set
7 forth in 741.28 means spouse, former spouse, persons related
8 by blood or marriage, persons who are presently residing
9 together, as if a family, or who have resided together in the
10 past, as if a family, and persons who have a child in common
11 regardless of whether they have been married or have resided
12 together at any time.
13 Section 2. Subsections (1) and (3) of section 39.902,
14 Florida Statutes, are amended to read:
15 39.902 Definitions.--As used in this part, the term:
16 (1) "Domestic violence" has the meaning as set forth
17 in s. 741.28 means any assault, battery, sexual assault,
18 sexual battery, or any criminal offense resulting in physical
19 injury or death of one family or household member by another
20 who is or was residing in the same single dwelling unit.
21 (3) "Family or household member" has the meaning set
22 forth in s. 741.28 means spouses, former spouses, adults
23 related by blood or marriage, persons who are presently
24 residing together as if a family or who have resided together
25 in the past as if a family, and persons who have a child in
26 common regardless of whether they have been married or have
27 resided together at any time.
28 Section 3. Subsections (1) and (2) of section 741.28,
29 Florida Statutes, are amended to read:
30 741.28 Domestic violence; definitions.--As used in ss.
31 741.28-741.31:
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1 (1) "Domestic violence" means any assault, aggravated
2 assault, battery, aggravated battery, sexual assault, sexual
3 battery, stalking, aggravated stalking, kidnapping, false
4 imprisonment, or any criminal offense resulting in physical
5 injury or death of one family or household member by another
6 who is or was residing in the same single dwelling unit. With
7 the exception of persons who are parents of a child in common,
8 the family or household members must be currently residing or
9 have in the past resided together in the same single dwelling
10 unit.
11 (2) "Family or household member" means spouses, former
12 spouses, persons related by blood or marriage, persons who are
13 presently residing together as if a family or who have resided
14 together in the past as if a family, and persons who have a
15 child in common regardless of whether they have been married
16 or have resided together at any time. With the exception of
17 persons who are parents of a child in common, the family or
18 household members must be currently residing or have in the
19 past resided together in the same single dwelling unit.
20 Section 4. Subsection (2) of section 943.171, Florida
21 Statutes, is amended to read:
22 943.171 Basic skills training in handling domestic
23 violence cases.--
24 (2) As used in this section, the term:
25 (a) "Domestic violence" has the meaning set forth in
26 s. 741.28 means any assault, battery, sexual assault, sexual
27 battery, or any criminal offense resulting in the physical
28 injury or death of one family or household member by another
29 who is or was residing in the same single dwelling unit.
30 (b) "Household member" has the meaning set forth in s.
31 741.28 means spouse, former spouse, persons related by blood
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1 or marriage, persons who are presently residing together, as
2 if a family, or who have resided together in the past, as if a
3 family, and persons who have a child in common regardless of
4 whether they have been married or have resided together at any
5 time.
6 Section 5. Subsection (3) of section 61.1825, Florida
7 Statutes, is amended to read:
8 61.1825 State Case Registry.--
9 (3)(a) For the purpose of this section, a family
10 violence indicator must be placed on a record when:
11 1. A party executes a sworn statement requesting that
12 a family violence indicator be placed on that party's record
13 which states that the party has reason to believe that release
14 of information to the Federal Case Registry may result in
15 physical or emotional harm to the party or the child;.
16 2. A temporary or final injunction for protection
17 against domestic violence has been granted pursuant to s.
18 741.30(6), an injunction for protection against domestic
19 violence has been issued by a court of a foreign state
20 pursuant to s. 741.315, or a temporary or final injunction for
21 protection against repeat violence has been granted pursuant
22 to s. 784.046; or
23 3. The department has received information on a Title
24 IV-D case from the Domestic and Repeat Violence Injunction
25 Statewide Verification System, established pursuant to s.
26 784.046(8)(b), that a court has granted a party a
27 domestic-violence or repeat-violence injunction.
28 (b) Before the family violence indicator can be
29 removed from a record, the protected person must be afforded
30 notice and an opportunity to appear before the court on the
31 issue of whether the disclosure will result in harm.
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1 Section 6. Section 741.281, Florida Statutes, is
2 amended to read:
3 741.281 Court to order batterers' intervention program
4 attendance.--If a person is found guilty of, has had
5 adjudication withheld on, or has pled nolo contendere to a
6 crime of domestic violence, as defined in s. 741.28, that
7 person shall be ordered by the court to a minimum term of 1
8 year's probation and the court shall order that the defendant
9 attend a batterers' intervention program as a condition of
10 probation. If a person is admitted to a pretrial diversion
11 program and has been charged with an act of domestic violence,
12 as defined in s. 741.28, the court shall order as a condition
13 of the program that the defendant attend a batterers'
14 intervention program. The court must impose the condition of
15 the batterers' intervention program for a defendant placed on
16 probation or pretrial diversion under this section, but the
17 court, in its discretion, may determine not to impose the
18 condition if it states on the record why a batterers'
19 intervention program might be inappropriate. It is preferred,
20 but not mandatory, that such programs be certified under s.
21 741.32. The imposition of probation under this section shall
22 not preclude the court from imposing any sentence of
23 imprisonment authorized by s. 775.082.
24 Section 7. Subsections (1), (3), and (6) of section
25 741.30, Florida Statutes, are amended and subsection (10) is
26 added to that section to read:
27 741.30 Domestic violence; injunction; powers and
28 duties of court and clerk; petition; notice and hearing;
29 temporary injunction; issuance of injunction; statewide
30 verification system; enforcement.--
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1 (1) There is created a cause of action for an
2 injunction for protection against domestic violence.
3 (a) Any person described in paragraph (e), who is
4 either the victim of any act of domestic violence as defined
5 in s. 741.28, or has reasonable cause to believe he or she is
6 in imminent danger of becoming the victim of any act of
7 domestic violence, has standing in the circuit court to file a
8 sworn petition for an injunction for protection against
9 domestic violence.
10 (b) This cause of action for an injunction may be
11 sought whether or not any other cause of action is currently
12 pending between the parties. However, the pendency of any such
13 cause of action shall be alleged in the petition.
14 (c) In the event a subsequent cause of action is filed
15 under chapter 61, any orders entered therein shall take
16 precedence over any inconsistent provisions of an injunction
17 issued under this section which addresses matters governed by
18 chapter 61.
19 (d) A person's right to petition for an injunction
20 shall not be affected by such person having left a residence
21 or household to avoid domestic violence.
22 (e) This cause of action for an injunction may be
23 sought by family or household members. No person shall be
24 precluded from seeking injunctive relief pursuant to this
25 chapter solely on the basis that such person is not a spouse.
26 (f) This cause of action for an injunction shall not
27 require that either party be represented by an attorney.
28 (g) Any person, including an officer of the court, who
29 offers evidence or recommendations relating to the cause of
30 action must either present the evidence or recommendations in
31 writing to the court with copies to each party and their
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1 attorney, or must present the evidence under oath at a hearing
2 at which all parties are present.
3 (h) Nothing in this section shall affect the title to
4 any real estate.
5 (i) The court is prohibited from issuing mutual orders
6 of protection. This does not preclude the court from issuing
7 separate injunctions for protection against domestic violence
8 where each party has complied with the provisions of this
9 section. Compliance with the provisions of this section cannot
10 be waived.
11 (3)(a) The sworn petition shall allege the existence
12 of such domestic violence and shall include the specific facts
13 and circumstances upon the basis of which relief is sought.
14 (b) The sworn petition shall be in substantially the
15 following form:
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17 PETITION FOR
18 INJUNCTION FOR PROTECTION
19 AGAINST DOMESTIC VIOLENCE
20
21 Before me, the undersigned authority, personally appeared
22 Petitioner ...(Name)..., who has been sworn and says that the
23 following statements are true:
24 (a) Petitioner resides at: ...(address)...
25 (Petitioner may furnish address to the court in a
26 separate confidential filing if, for safety reasons, the
27 petitioner requires the location of the current residence to
28 be confidential.)
29 (b) Respondent resides at: ...(last known address)...
30 (c) Respondent's last known place of employment:
31 ...(name of business and address)...
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1 (d) Physical description of respondent: ....
2 Race....
3 Sex....
4 Date of birth....
5 Height....
6 Weight....
7 Eye color....
8 Hair color....
9 Distinguishing marks or scars....
10 (e) Aliases of respondent: ....
11 (f) Respondent is the spouse or former spouse of the
12 petitioner or is any other person related by blood or marriage
13 to the petitioner or is any other person who is or was
14 residing within a single dwelling unit with the petitioner, as
15 if a family, or is a person with whom the petitioner has a
16 child in common, regardless of whether the petitioner and
17 respondent are or were married or residing together, as if a
18 family.
19 (g) The following describes any other cause of action
20 currently pending between the petitioner and respondent: .....
21 ..............................................................
22 The petitioner should also describe any previous or
23 pending attempts by the petitioner to obtain an injunction for
24 protection against domestic violence in this or any other
25 circuit, and the results of that attempt......................
26 ..............................................................
27 Case numbers should be included if available.
28 (h) Petitioner is either a victim of domestic violence
29 has suffered or has reasonable cause to fear imminent domestic
30 violence because respondent has (check off all that apply and
31 describe in the spaces below the incidents of violence or
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1 threats of violence, specifying when and where they occurred,
2 including, but not limited to, locations such as a home,
3 school, place of employment, or visitation exchange): ........
4 ....committed or threatened to commit domestic violence
5 defined in s. 741.28 as any assault, aggravated assault,
6 battery, aggravated battery, sexual assault, sexual battery,
7 stalking, aggravated stalking, kidnapping, false imprisonment,
8 or any criminal offense resulting in physical injury or death
9 of one family or household member by another. With the
10 exception of persons who are parents of a child in common, the
11 family or household members must be currently residing or have
12 in the past resided together in the same dwelling unit;
13 ....previously threatened, harassed, stalked, or
14 physically abused the petitioner;
15 ....attempted to harm the petitioner or family members
16 or individuals associated with the petitioner;
17 ....threatened to conceal, kidnap, or harm the
18 petitioner's child(ren);
19 ....intentionally injured or killed a family pet;
20 ....used, or has threatened to use against the
21 petitioner any weapons such as guns or knives;
22 ....physically restrained the petitioner from leaving
23 the home or calling law enforcement;
24 ....a criminal history involving violence or the threat
25 of violence (if known);
26 ....another order of protection issued against him or
27 her previously or from another jurisdiction (if known);
28 ....engaged in any other behavior or conduct that leads
29 the petitioner to have reasonable cause to believe he or she
30 is in imminent danger of becoming a victim of domestic
31 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.
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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)...
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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.
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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. Paragraph (c) of subsection (1) of section
4 28.101, Florida Statutes, is amended to read:
5 (1) When a party petitions for a dissolution of
6 marriage, in addition to the filing charges in s. 28.241, the
7 clerk shall collect and receive:
8 (c) A charge of $36 $18. On a monthly basis, the
9 clerk shall transfer the moneys collected pursuant to this
10 paragraph to the State Treasury for deposit in the Domestic
11 Violence Trust Fund. Such funds which are generated shall be
12 directed to the Department of Children and Family Services for
13 the specific purpose of funding domestic violence centers.
14 Section 9. This act shall take effect July 1, 2001.
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