1 | A bill to be entitled |
2 | An act relating to de facto custody of a child; requesting |
3 | that the Division of Statutory Revision revise the title |
4 | of ch. 751, F.S.; amending s. 751.011, F.S.; providing |
5 | definitions relating to de facto custodians; creating s. |
6 | 751.10, F.S.; specifying circumstances under which a |
7 | person may file a petition to become the de facto |
8 | custodian of a child; detailing the matters that must be |
9 | in the petition filed by the petitioner; requiring that |
10 | reasonable notice of the custody hearing be given to |
11 | specified persons; providing for a hearing; requiring that |
12 | if an objection to the petition is filed, the court may |
13 | grant the petition only if the petitioner shows by clear |
14 | and convincing evidence that it is in the best interest of |
15 | the child for the petitioner to be the de facto custodian; |
16 | providing that support for the child may be ordered only |
17 | under certain circumstances; providing for the termination |
18 | of the order granting de facto custody; providing an |
19 | effective date. |
20 |
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21 | Be It Enacted by the Legislature of the State of Florida: |
22 |
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23 | Section 1. The Division of Statutory Revision is requested |
24 | to change the title of chapter 751, Florida Statutes, to |
25 | "CUSTODY OF MINOR CHILDREN BY EXTENDED FAMILY AND DE FACTO |
26 | CUSTODIANS." |
27 | Section 2. Section 751.011, Florida Statutes, is amended |
28 | to read: |
29 | 751.011 Definitions.--As used in this chapter ss. 751.01- |
30 | 751.01-751.05, the term: |
31 | (1) "De facto custodian" means an individual who has been |
32 | the primary caregiver for a child who has, within the 24 months |
33 | immediately preceding the filing of the petition, resided with |
34 | the individual without a parent present and with a lack of |
35 | demonstrated consistent participation by a parent for a period |
36 | of: |
37 | (a) Six months or more, which need not be consecutive, if |
38 | the child is younger than 3 years of age; or |
39 | (b) One year or more, which need not be consecutive, if |
40 | the child is 3 years of age or older. |
41 |
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42 | A de facto custodian does not include a person who has a child |
43 | placed in his or her care through a custody consent decree, a |
44 | court order, or a voluntary placement or for adoption under |
45 | chapter 61. |
46 | (2)(1) "Extended family" means is any family composed of |
47 | the minor child and a relative of the child who is the child's |
48 | brother, sister, grandparent, aunt, uncle, or cousin. |
49 | (3) "Lack of demonstrated consistent participation by a |
50 | parent" means a refusal or neglect to comply with the duties |
51 | imposed upon the parent by the parent-child relationship, |
52 | including, but not limited to, providing the child with |
53 | necessary food, clothing, shelter, health care, and education; |
54 | creating a nurturing and consistent relationship; and providing |
55 | other care and control necessary for the child's physical, |
56 | mental, or emotional health and development. |
57 | (4) "Other person responsible for a child's welfare" has |
58 | the 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 |
61 | believes himself to be the biological father of the minor child, |
62 | but who is unable to prove his paternity due to the absence of |
63 | the 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 |
66 | read: |
67 | 751.10 De facto custodians.-- |
68 | (1) DETERMINATION OF DE FACTO CUSTODY.--Any person who has |
69 | the signed, notarized consent of the child's legal parents, or |
70 | any person with whom a child is presently living, may bring |
71 | proceedings in the circuit court to determine the de facto |
72 | custody of the child. The proceeding may be filed in the county |
73 | where the child permanently resides, where the child is found, |
74 | or where an earlier order of custody was entered. |
75 | (2) PETITION FOR DE FACTO CUSTODY; CONTENTS.--Each |
76 | petition for de facto custody of a minor child must be verified |
77 | by the petitioner and must contain statements, to the best of |
78 | petitioner's knowledge and belief, showing: |
79 | (a) The name, date of birth, and current address of the |
80 | child. |
81 | (b) The names and current addresses of the child's |
82 | parents. |
83 | (c) The length of time the child has lived with the |
84 | petitioner. |
85 | (d) The names and current addresses of the persons with |
86 | whom the child has lived during the past 5 years. |
87 | (e) The places where the child has lived during the past 5 |
88 | years. |
89 | (f) The current legal custodial status of the child and a |
90 | listing of all prior orders of custody, if known to the |
91 | petitioner. |
92 | (g) Information concerning any pending custody proceeding |
93 | in this or any other state with respect to the child. |
94 | (h) The residence and post office address of the |
95 | petitioner. |
96 | (i) The petitioner's relationship to the child and the |
97 | extent to which the child has been cared for, nurtured, and |
98 | supported by the petitioner. |
99 | (j) The consent of the child's parents, if any, or the |
100 | circumstances of the child's current living situation with the |
101 | petitioner. |
102 | (k) Any temporary or permanent child support, attorney's |
103 | fees, costs, and disbursements. |
104 | (l) Whether an order of protection governing the parties |
105 | or a party and a minor child of the parties or party is in |
106 | effect and, if so, the court or similar jurisdiction in which |
107 | the order was entered. |
108 | (m) That it is in the best interest of the child for the |
109 | petitioner to have de facto custody of the child. |
110 | (3) NOTICE AND OPPORTUNITY TO BE HEARD.--Before a decree |
111 | is made under this section, reasonable notice and an opportunity |
112 | to be heard must be given to the parents of the minor child, |
113 | relatives of the child, other persons responsible for a child's |
114 | welfare, and the child's tribe if the child is an Indian child. |
115 | Notice must be given by service of process, either personal or |
116 | constructive. |
117 | (4) ORDER GRANTING DE FACTO CUSTODY.-- |
118 | (a) At the hearing on the petition for de facto custody, |
119 | the court must hear the evidence concerning the minor child's |
120 | need for care by the petitioner acting as the de facto |
121 | custodian, all other matters required to be set forth in the |
122 | petition, and the objections or other testimony of the child's |
123 | parents, relatives, or other persons responsible for the child's |
124 | welfare, if present. |
125 | (b) Unless the child's parents, relatives, or other |
126 | persons responsible for the child's welfare object, the court |
127 | shall award the de facto custody of the child to the petitioner |
128 | if it is in the best interest of the child to do so. |
129 | (c) If one of the minor child's parents, relatives, or |
130 | other persons responsible for a child's welfare objects to the |
131 | granting of de facto custody to the petitioner, the court shall |
132 | grant the petition only upon a finding, by clear and convincing |
133 | evidence, that the petitioner has satisfied all matters required |
134 | to be set forth in the petition and that the child's parent or |
135 | parents, or others, have exhibited a lack of demonstrated |
136 | consistent participation in the care of the child. In |
137 | determining that a parent or another lacks consistent |
138 | participation as a parent, the court must find that the parent |
139 | or another has abused, abandoned, or neglected the child, as |
140 | defined in chapter 39. The court must make detailed findings and |
141 | explain how the facts have led to its conclusions and to the |
142 | determination of the best interest of the child. |
143 | (d) The order granting de facto custody of the minor child |
144 | to the petitioner may also grant visitation rights to the |
145 | child's parent or parents if it is in the best interest of the |
146 | child to do so. |
147 | (e) The order granting de facto custody of the minor child |
148 | to the petitioner may not include an order for the support of |
149 | the child unless the parent has received personal or substituted |
150 | service of process, the petition requests an order for the |
151 | support of the child, and there is evidence of the parent's |
152 | ability to pay the support ordered. |
153 | (f) If the court grants custody to the de facto custodian, |
154 | the de facto custodian has legal custody of the child under the |
155 | laws of this state. |
156 | (5) TERMINATION OF THE ORDER.--At any time, either or both |
157 | of the child's parents may petition the court to modify or |
158 | terminate the order granting de facto custody upon a finding |
159 | that the parent requesting the termination of the order is a fit |
160 | parent or by consent of the parties. |
161 | Section 4. This act shall take effect on July 1, 2005. |