HB 0321

1
A bill to be entitled
2An act relating to de facto custody of a child; requesting
3that the Division of Statutory Revision revise the title
4of ch. 751, F.S.; amending s. 751.011, F.S.; providing
5definitions relating to de facto custodians; creating s.
6751.10, F.S.; specifying circumstances under which a
7person may file a petition to become the de facto
8custodian of a child; detailing the matters that must be
9in the petition filed by the petitioner; requiring that
10reasonable notice of the custody hearing be given to
11specified persons; providing for a hearing; requiring that
12if an objection to the petition is filed, the court may
13grant the petition only if the petitioner shows by clear
14and convincing evidence that it is in the best interest of
15the child for the petitioner to be the de facto custodian;
16providing that support for the child may be ordered only
17under certain circumstances; providing for the termination
18of the order granting de facto custody; providing an
19effective date.
20
21Be It Enacted by the Legislature of the State of Florida:
22
23     Section 1.  The Division of Statutory Revision is requested
24to change the title of chapter 751, Florida Statutes, to
25"CUSTODY OF MINOR CHILDREN BY EXTENDED FAMILY AND DE FACTO
26CUSTODIANS."
27     Section 2.  Section 751.011, Florida Statutes, is amended
28to read:
29     751.011  Definitions.--As used in this chapter ss. 751.01-
30751.01-751.05, the term:
31     (1)  "De facto custodian" means an individual who has been
32the primary caregiver for a child who has, within the 24 months
33immediately preceding the filing of the petition, resided with
34the individual without a parent present and with a lack of
35demonstrated consistent participation by a parent for a period
36of:
37     (a)  Six months or more, which need not be consecutive, if
38the child is younger than 3 years of age; or
39     (b)  One year or more, which need not be consecutive, if
40the child is 3 years of age or older.
41
42A de facto custodian does not include a person who has a child
43placed in his or her care through a custody consent decree, a
44court order, or a voluntary placement or for adoption under
45chapter 61.
46     (2)(1)  "Extended family" means is any family composed of
47the minor child and a relative of the child who is the child's
48brother, sister, grandparent, aunt, uncle, or cousin.
49     (3)  "Lack of demonstrated consistent participation by a
50parent" means a refusal or neglect to comply with the duties
51imposed upon the parent by the parent-child relationship,
52including, but not limited to, providing the child with
53necessary food, clothing, shelter, health care, and education;
54creating a nurturing and consistent relationship; and providing
55other care and control necessary for the child's physical,
56mental, or emotional health and development.
57     (4)  "Other person responsible for a child's welfare" has
58the same meaning as in s. 39.01(47).
59     (5)  "Parent" has the same meaning as in s. 39.01(49).
60     (6)(2)  "Putative father" means is a man who reasonably
61believes himself to be the biological father of the minor child,
62but who is unable to prove his paternity due to the absence of
63the mother of the child.
64     (7)  "Relative" has the same meaning as in s. 39.01(60).
65     Section 3.  Section 751.10, Florida Statutes, is created to
66read:
67     751.10  De facto custodians.--
68     (1)  DETERMINATION OF DE FACTO CUSTODY.--Any person who has
69the signed, notarized consent of the child's legal parents, or
70any person with whom a child is presently living, may bring
71proceedings in the circuit court to determine the de facto
72custody of the child. The proceeding may be filed in the county
73where the child permanently resides, where the child is found,
74or where an earlier order of custody was entered.
75     (2)  PETITION FOR DE FACTO CUSTODY; CONTENTS.--Each
76petition for de facto custody of a minor child must be verified
77by the petitioner and must contain statements, to the best of
78petitioner's knowledge and belief, showing:
79     (a)  The name, date of birth, and current address of the
80child.
81     (b)  The names and current addresses of the child's
82parents.
83     (c)  The length of time the child has lived with the
84petitioner.
85     (d)  The names and current addresses of the persons with
86whom the child has lived during the past 5 years.
87     (e)  The places where the child has lived during the past 5
88years.
89     (f)  The current legal custodial status of the child and a
90listing of all prior orders of custody, if known to the
91petitioner.
92     (g)  Information concerning any pending custody proceeding
93in this or any other state with respect to the child.
94     (h)  The residence and post office address of the
95petitioner.
96     (i)  The petitioner's relationship to the child and the
97extent to which the child has been cared for, nurtured, and
98supported by the petitioner.
99     (j)  The consent of the child's parents, if any, or the
100circumstances of the child's current living situation with the
101petitioner.
102     (k)  Any temporary or permanent child support, attorney's
103fees, costs, and disbursements.
104     (l)  Whether an order of protection governing the parties
105or a party and a minor child of the parties or party is in
106effect and, if so, the court or similar jurisdiction in which
107the order was entered.
108     (m)  That it is in the best interest of the child for the
109petitioner to have de facto custody of the child.
110     (3)  NOTICE AND OPPORTUNITY TO BE HEARD.--Before a decree
111is made under this section, reasonable notice and an opportunity
112to be heard must be given to the parents of the minor child,
113relatives of the child, other persons responsible for a child's
114welfare, and the child's tribe if the child is an Indian child.
115Notice must be given by service of process, either personal or
116constructive.
117     (4)  ORDER GRANTING DE FACTO CUSTODY.--
118     (a)  At the hearing on the petition for de facto custody,
119the court must hear the evidence concerning the minor child's
120need for care by the petitioner acting as the de facto
121custodian, all other matters required to be set forth in the
122petition, and the objections or other testimony of the child's
123parents, relatives, or other persons responsible for the child's
124welfare, if present.
125     (b)  Unless the child's parents, relatives, or other
126persons responsible for the child's welfare object, the court
127shall award the de facto custody of the child to the petitioner
128if it is in the best interest of the child to do so.
129     (c)  If one of the minor child's parents, relatives, or
130other persons responsible for a child's welfare objects to the
131granting of de facto custody to the petitioner, the court shall
132grant the petition only upon a finding, by clear and convincing
133evidence, that the petitioner has satisfied all matters required
134to be set forth in the petition and that the child's parent or
135parents, or others, have exhibited a lack of demonstrated
136consistent participation in the care of the child. In
137determining that a parent or another lacks consistent
138participation as a parent, the court must find that the parent
139or another has abused, abandoned, or neglected the child, as
140defined in chapter 39. The court must make detailed findings and
141explain how the facts have led to its conclusions and to the
142determination of the best interest of the child.
143     (d)  The order granting de facto custody of the minor child
144to the petitioner may also grant visitation rights to the
145child's parent or parents if it is in the best interest of the
146child to do so.
147     (e)  The order granting de facto custody of the minor child
148to the petitioner may not include an order for the support of
149the child unless the parent has received personal or substituted
150service of process, the petition requests an order for the
151support of the child, and there is evidence of the parent's
152ability to pay the support ordered.
153     (f)  If the court grants custody to the de facto custodian,
154the de facto custodian has legal custody of the child under the
155laws of this state.
156     (5)  TERMINATION OF THE ORDER.--At any time, either or both
157of the child's parents may petition the court to modify or
158terminate the order granting de facto custody upon a finding
159that the parent requesting the termination of the order is a fit
160parent or by consent of the parties.
161     Section 4.  This act shall take effect on July 1, 2005.


CODING: Words stricken are deletions; words underlined are additions.