Senate Bill sb0510

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    Florida Senate - 2005                                   SB 510

    By Senator Fasano





    11-309-05

  1                      A bill to be entitled

  2         An act relating to de facto custody of a child;

  3         requesting that the Division of Statutory

  4         Revision revise the title of chapter 751, F.S.;

  5         amending s. 751.011, F.S.; providing

  6         definitions relating to de facto custodians;

  7         creating s. 751.10, F.S.; specifying

  8         circumstances under which a person may file a

  9         petition to become the de facto custodian of a

10         child; detailing the matters that must be in

11         the petition filed by the petitioner; requiring

12         that reasonable notice of the custody hearing

13         be given to specified persons; providing for a

14         hearing; requiring that if an objection to the

15         petition is filed, the court may grant the

16         petition only if the petitioner shows by clear

17         and convincing evidence that it is in the best

18         interest of the child for the petitioner to be

19         the de facto custodian; providing that support

20         for the child may be ordered only under certain

21         circumstances; providing for the termination of

22         the order granting de facto custody; providing

23         an effective date.

24  

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

26  

27         Section 1.  The Division of Statutory Revision is

28  requested to change the title of chapter 751, Florida

29  Statutes, to "CUSTODY OF MINOR CHILDREN BY EXTENDED FAMILY AND

30  DE FACTO CUSTODIANS."

31  

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    Florida Senate - 2005                                   SB 510
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 1         Section 2.  Section 751.011, Florida Statutes, is

 2  amended to read:

 3         751.011  Definitions.--As used in this chapter ss.

 4  751.01-751.05, the term:

 5         (1)  "De facto custodian" means an individual who has

 6  been the primary caregiver for a child who has, within the 24

 7  months immediately preceding the filing of the petition,

 8  resided with the individual without a parent present and with

 9  a lack of demonstrated consistent participation by a parent

10  for a period of:

11         (a)  Six months or more, which need not be consecutive,

12  if the child is younger than 3 years of age; or

13         (b)  One year or more, which need not be consecutive,

14  if the child is 3 years of age or older.

15  

16  A de facto custodian does not include a person who has a child

17  placed in his or her care through a custody consent decree, a

18  court order, or a voluntary placement or for adoption under

19  chapter 61.

20         (2)(1)  "Extended family" means is any family composed

21  of the minor child and a relative of the child who is the

22  child's brother, sister, grandparent, aunt, uncle, or cousin.

23         (3)  "Lack of demonstrated consistent participation by

24  a parent" means a refusal or neglect to comply with the duties

25  imposed upon the parent by the parent-child relationship,

26  including, but not limited to, providing the child with

27  necessary food, clothing, shelter, health care, and education;

28  creating a nurturing and consistent relationship; and

29  providing other care and control necessary for the child's

30  physical, mental, or emotional health and development.

31  

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    Florida Senate - 2005                                   SB 510
    11-309-05




 1         (4)  "Other person responsible for a child's welfare"

 2  has the same meaning as in s. 39.01(47).

 3         (5)  "Parent" has the same meaning as in s. 39.01(49).

 4         (6)(2)  "Putative father" means is a man who reasonably

 5  believes himself to be the biological father of the minor

 6  child, but who is unable to prove his paternity due to the

 7  absence of the mother of the child.

 8         (7)  "Relative" has the same meaning as in s.

 9  39.01(60).

10         Section 3.  Section 751.10, Florida Statutes, is

11  created to read:

12         751.10  De facto custodians.--

13         (1)  DETERMINATION OF DE FACTO CUSTODY.--Any person who

14  has the signed, notarized consent of the child's legal

15  parents, or any person with whom a child is presently living,

16  may bring proceedings in the circuit court to determine the de

17  facto custody of the child. The proceeding may be filed in the

18  county where the child permanently resides, where the child is

19  found, or where an earlier order of custody was entered.

20         (2)  PETITION FOR DE FACTO CUSTODY; CONTENTS.--Each

21  petition for de facto custody of a minor child must be

22  verified by the petitioner and must contain statements, to the

23  best of petitioner's knowledge and belief, showing:

24         (a)  The name, date of birth, and current address of

25  the child;

26         (b)  The names and current addresses of the child's

27  parents;

28         (c)  The length of time the child has lived with the

29  petitioner;

30         (d)  The names and current addresses of the persons

31  with whom the child has lived during the past 5 years;

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    Florida Senate - 2005                                   SB 510
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 1         (e)  The places where the child has lived during the

 2  past 5 years;

 3         (f)  The current legal custodial status of the child

 4  and a listing of all prior orders of custody, if known to the

 5  petitioner;

 6         (g)  Information concerning any pending custody

 7  proceeding in this or any other state with respect to the

 8  child;

 9         (h)  The residence and post office address of the

10  petitioner;

11         (i)  The petitioner's relationship to the child and the

12  extent to which the child has been cared for, nurtured, and

13  supported by the petitioner;

14         (j)  The consent of the child's parents, if any, or the

15  circumstances of the child's current living situation with the

16  petitioner;

17         (k)  Any temporary or permanent child support,

18  attorney's fees, costs, and disbursements;

19         (l)  Whether an order of protection governing the

20  parties or a party and a minor child of the parties or party

21  is in effect and, if so, the court or similar jurisdiction in

22  which the order was entered; and

23         (m)  That it is in the best interests of the child for

24  the petitioner to have de facto custody of the child.

25         (3)  NOTICE AND OPPORTUNITY TO BE HEARD.--Before a

26  decree is made under this section, reasonable notice and an

27  opportunity to be heard must be given to the parents of the

28  minor child, relatives of the child, other persons responsible

29  for a child's welfare, and the child's tribe if the child is

30  an Indian child. Notice must be given by service of process,

31  either personal or constructive.

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 1         (4)  ORDER GRANTING DE FACTO CUSTODY.--

 2         (a)  At the hearing on the petition for de facto

 3  custody, the court must hear the evidence concerning the minor

 4  child's need for care by the petitioner acting as the de facto

 5  custodian, all other matters required to be set forth in the

 6  petition, and the objections or other testimony of the child's

 7  parents, relatives, or other persons responsible for the

 8  child's welfare, if present.

 9         (b)  Unless the child's parents, relatives, or other

10  persons responsible for the child's welfare, object, the court

11  shall award the de facto custody of the child to the

12  petitioner if it is in the best interest of the child to do

13  so.

14         (c)  If one of the minor child's parents, relatives, or

15  other persons responsible for a child's welfare objects to the

16  granting of de facto custody to the petitioner, the court

17  shall grant the petition only upon a finding, by clear and

18  convincing evidence, that the petitioner has satisfied all

19  matters required to be set forth in the petition and that the

20  child's parent or parents, or others, have exhibited a lack of

21  demonstrated consistent participation in the care of the

22  child. In determining that a parent or another lacks

23  consistent participation as a parent, the court must find that

24  the parent or another has abused, abandoned, or neglected the

25  child, as defined in chapter 39. The court must make detailed

26  findings and explain how the facts have led to its conclusions

27  and to the determination of the best interests of the child.

28         (d)  The order granting de facto custody of the minor

29  child to the petitioner may also grant visitation rights to

30  the child's parent or parents if it is in the best interest of

31  the child to do so.

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    Florida Senate - 2005                                   SB 510
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 1         (e)  The order granting de facto custody of the minor

 2  child to the petitioner may not include an order for the

 3  support of the child unless the parent has received personal

 4  or substituted service of process, the petition requests an

 5  order for the support of the child, and there is evidence of

 6  the parent's ability to pay the support ordered.

 7         (f)  If the court grants custody to the de facto

 8  custodian, the de facto custodian has legal custody of the

 9  child under the laws of this state.

10         (5)  TERMINATION OF THE ORDER.--At any time, either or

11  both of the child's parents may petition the court to modify

12  or terminate the order granting de facto custody upon a

13  finding that the parent requesting the termination of the

14  order is a fit parent, or by consent of the parties.

15         Section 4.  This act shall take effect on July 1, 2005.

16  

17            *****************************************

18                          SENATE SUMMARY

19    Provides that a person may file a petition to become the
      de facto custodian of a child. Details the matters that
20    must be in the petition filed by the petitioner. Requires
      that reasonable notice of the custody hearing be given to
21    specified persons. Provides for a hearing. Requires that
      if an objection to the petition is filed, the court may
22    grant the petition only if the petitioner shows by clear
      and convincing evidence that it is in the best interest
23    of the child for the petitioner to be the de facto
      custodian. Provides that support for the child may be
24    ordered only under certain circumstances. Provides for
      termination of the de facto-custody order.
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