1 | A bill to be entitled |
2 | An act relating to child visitation; creating s. 39.0139, |
3 | F.S.; providing a short title; providing legislative |
4 | findings and intent; creating a presumption; providing for |
5 | a hearing; providing conditions for visitation or other |
6 | contact; providing additional considerations for |
7 | visitation or other contact; amending ss. 39.402, 39.506, |
8 | 39.509, and 39.521, F.S.; subjecting specified visitation |
9 | orders to s. 39.0139, F.S.; creating s. 753.01, F.S.; |
10 | providing definitions; creating s. 753.02, F.S.; providing |
11 | responsibilities for the Clearinghouse on Supervised |
12 | Visitation; authorizing the clearinghouse to apply for |
13 | grants and accept private contributions; creating s. |
14 | 753.03, F.S.; providing for the development of standards; |
15 | providing membership of an advisory board; providing for |
16 | reports; creating s. 753.04, F.S.; providing interim |
17 | standards for supervised visitation programs; creating s. |
18 | 753.05, F.S.; providing for referrals related to child |
19 | sexual abuse; requiring a supervised visitation program to |
20 | agree to comply with specified standards; repealing ss. |
21 | 753.001, 753.002, and 753.004, F.S., relating to the |
22 | Florida Family Visitation Network; providing a directive |
23 | to the Division of Statutory Revision; providing an |
24 | effective date. |
25 |
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26 | Be It Enacted by the Legislature of the State of Florida: |
27 |
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28 | Section 1. Section 39.0139, Florida Statutes, is created |
29 | to read: |
30 | 39.0139 Visitation or other contact; restrictions.-- |
31 | (1) SHORT TITLE.--This section may be cited as the |
32 | "Keeping Children Safe Act." |
33 | (2) LEGISLATIVE FINDINGS AND INTENT.-- |
34 | (a) The Legislature finds that: |
35 | 1. For some children who are abused, abandoned, or |
36 | neglected by a parent or other caregiver, abuse may include |
37 | sexual abuse. |
38 | 2. These same children are at risk of suffering from |
39 | further harm during visitation or other contact. |
40 | 3. Visitation or other contact with the child may be used |
41 | to influence the child's testimony. |
42 | (b) It is the intent of the Legislature to protect |
43 | children and reduce the risk of further harm to children who |
44 | have been sexually abused or exploited by a parent or other |
45 | caregiver by placing additional requirements on judicial |
46 | determinations related to visitation and other contact. |
47 | (3) PRESUMPTION OF DETRIMENT.-- |
48 | (a) A rebuttable presumption of detriment to a child is |
49 | created when a parent or caregiver: |
50 | 1. Has been the subject of a report to the child abuse |
51 | hotline alleging sexual abuse of any child as defined in s. |
52 | 39.01; |
53 | 2. Has been found guilty of, regardless of adjudication, |
54 | or has entered a plea of guilty or nolo contendere to, charges |
55 | under the following statutes or substantially similar statutes |
56 | of other jurisdictions: |
57 | a. Section 787.04, relating to removing minors from the |
58 | state or concealing minors contrary to court order; |
59 | b. Section 794.011, relating to sexual battery; |
60 | c. Section 798.02, relating to lewd and lascivious |
61 | behavior; |
62 | d. Chapter 800, relating to lewdness and indecent |
63 | exposure; |
64 | e. Section 826.04, relating to incest; or |
65 | f. Chapter 827, relating to the abuse of children; or |
66 | 3. Has been determined by a court to be a sexual predator |
67 | as defined in s. 775.21 or has received a substantially similar |
68 | designation under laws of another jurisdiction. |
69 | (b) For purposes of this subsection, "substantially |
70 | similar" has the same meaning as in s. 39.806(1)(d)2. |
71 | (4) HEARINGS.--A person who meets any of the criteria set |
72 | forth in paragraph (3)(a) may visit or have other contact with a |
73 | child only after a hearing and an order by the court that allows |
74 | the visitation or other contact. At such a hearing: |
75 | (a) The court must appoint an attorney ad litem or a |
76 | guardian ad litem for the child if one has not already been |
77 | appointed. Any attorney ad litem or guardian ad litem appointed |
78 | shall have special training in the dynamics of child sexual |
79 | abuse. |
80 | (b) The court may receive and rely upon any relevant and |
81 | material evidence submitted, including written and oral reports, |
82 | to the extent of its probative value in its effort to determine |
83 | the action to be taken with regard to the child, even if these |
84 | reports and evidence may not be competent in an adjudicatory |
85 | hearing. |
86 | (c) If the court finds the person proves by clear and |
87 | convincing evidence that the safety, well-being, and physical, |
88 | mental, and emotional health of the child is not endangered by |
89 | such visitation or other contact, the presumption in subsection |
90 | (3) is rebutted and the court may allow visitation or other |
91 | contact. The court shall enter a written order specifying any |
92 | conditions it finds necessary to protect the child. |
93 | (d) If the court finds the person did not rebut the |
94 | presumption established in subsection (3), the court shall enter |
95 | a written order prohibiting or restricting visitation or other |
96 | contact with the child. |
97 | (5) CONDITIONS.--Any visitation or other contact ordered |
98 | under paragraph (4)(d) shall be: |
99 | (a) Supervised by a person who has previously received |
100 | special training in the dynamics of child sexual abuse; or |
101 | (b) Conducted in a supervised visitation program, provided |
102 | that the program has an agreement with the court and a current |
103 | affidavit of compliance on file with the chief judge of the |
104 | circuit in which the program is located affirming that the |
105 | program has agreed to comply with the minimum standards |
106 | contained in the administrative order issued by the Chief |
107 | Justice of the Supreme Court on November 17, 1999, and provided |
108 | the program has a written agreement with the court and with the |
109 | department as described in s. 753.05 containing policies and |
110 | guidelines specifically related to referrals involving child |
111 | sexual abuse. |
112 | (6) ADDITIONAL CONSIDERATIONS.-- |
113 | (a) If a party or participant, based on communication with |
114 | the child or other firsthand knowledge, informs the court that a |
115 | person is attempting to influence the testimony of the child, |
116 | the court shall immediately suspend visitation or other contact. |
117 | The court shall then hold a hearing and determine whether it is |
118 | in the best interests of the child to prohibit or restrict |
119 | visitation or other contact. |
120 | (b) If a child is in therapy as a result of any of the |
121 | allegations or convictions contained in paragraph (3)(a) and the |
122 | child's therapist reports that the visitation or other contact |
123 | is impeding the child's therapeutic progress, the court shall |
124 | convene a hearing within 7 business days to review the terms, |
125 | conditions, or appropriateness of continued visitation or other |
126 | contact. |
127 | Section 2. Subsection (9) of section 39.402, Florida |
128 | Statutes, is amended to read: |
129 | 39.402 Placement in a shelter.-- |
130 | (9) At any shelter hearing, the department shall provide |
131 | to the court a recommendation for scheduled contact between the |
132 | child and parents, if appropriate. The court shall determine |
133 | visitation rights absent a clear and convincing showing that |
134 | visitation is not in the best interest of the child. Any order |
135 | for visitation or other contact must conform to the provisions |
136 | of s. 39.0139. If visitation is ordered but will not commence |
137 | within 72 hours of the shelter hearing, the department shall |
138 | provide justification to the court. |
139 | Section 3. Subsection (6) of section 39.506, Florida |
140 | Statutes, is amended to read: |
141 | 39.506 Arraignment hearings.-- |
142 | (6) At any arraignment hearing, if the child is in an |
143 | out-of-home placement, the court shall order visitation rights |
144 | absent a clear and convincing showing that visitation is not in |
145 | the best interest of the child. Any order for visitation or |
146 | other contact must conform to the provisions of s. 39.0139. |
147 | Section 4. Section 39.509, Florida Statutes, is amended to |
148 | read: |
149 | 39.509 Grandparents rights.--Notwithstanding any other |
150 | provision of law, a maternal or paternal grandparent as well as |
151 | a stepgrandparent is entitled to reasonable visitation with his |
152 | or her grandchild who has been adjudicated a dependent child and |
153 | taken from the physical custody of the parent unless the court |
154 | finds that such visitation is not in the best interest of the |
155 | child or that such visitation would interfere with the goals of |
156 | the case plan. Reasonable visitation may be unsupervised and, |
157 | where appropriate and feasible, may be frequent and continuing. |
158 | Any order for visitation or other contact must conform to the |
159 | provisions of s. 39.0139. |
160 | (1) Grandparent visitation may take place in the home of |
161 | the grandparent unless there is a compelling reason for denying |
162 | such a visitation. The department's caseworker shall arrange the |
163 | visitation to which a grandparent is entitled pursuant to this |
164 | section. The state shall not charge a fee for any costs |
165 | associated with arranging the visitation. However, the |
166 | grandparent shall pay for the child's cost of transportation |
167 | when the visitation is to take place in the grandparent's home. |
168 | The caseworker shall document the reasons for any decision to |
169 | restrict a grandparent's visitation. |
170 | (2) A grandparent entitled to visitation pursuant to this |
171 | section shall not be restricted from appropriate displays of |
172 | affection to the child, such as appropriately hugging or kissing |
173 | his or her grandchild. Gifts, cards, and letters from the |
174 | grandparent and other family members shall not be denied to a |
175 | child who has been adjudicated a dependent child. |
176 | (3) Any attempt by a grandparent to facilitate a meeting |
177 | between the child who has been adjudicated a dependent child and |
178 | the child's parent or legal custodian, or any other person in |
179 | violation of a court order shall automatically terminate future |
180 | visitation rights of the grandparent. |
181 | (4) When the child has been returned to the physical |
182 | custody of his or her parent, the visitation rights granted |
183 | pursuant to this section shall terminate. |
184 | (5) The termination of parental rights does not affect the |
185 | rights of grandparents unless the court finds that such |
186 | visitation is not in the best interest of the child or that such |
187 | visitation would interfere with the goals of permanency planning |
188 | for the child. |
189 | (6) In determining whether grandparental visitation is not |
190 | in the child's best interest, consideration may be given to the |
191 | following: |
192 | (a) The finding of guilt, regardless of adjudication, or |
193 | entry or plea of guilty or nolo contendere to charges under the |
194 | following statutes, or similar statutes of other jurisdictions: |
195 | s. 787.04, relating to removing minors from the state or |
196 | concealing minors contrary to court order; s. 794.011, relating |
197 | to sexual battery; s. 798.02, relating to lewd and lascivious |
198 | behavior; chapter 800, relating to lewdness and indecent |
199 | exposure; s. 826.04, relating to incest; or chapter 827, |
200 | relating to the abuse of children. |
201 | (b) The designation by a court as a sexual predator as |
202 | defined in s. 775.21 or a substantially similar designation |
203 | under laws of another jurisdiction. |
204 | (c) Consideration may also be given to A report of abuse, |
205 | abandonment, or neglect under ss. 415.101-415.113 or this |
206 | chapter and the outcome of the investigation concerning such |
207 | report. |
208 | Section 5. Paragraph (d) of subsection (3) of section |
209 | 39.521, Florida Statutes, is amended to read: |
210 | 39.521 Disposition hearings; powers of disposition.-- |
211 | (3) When any child is adjudicated by a court to be |
212 | dependent, the court shall determine the appropriate placement |
213 | for the child as follows: |
214 | (d) If the child cannot be safely placed in a nonlicensed |
215 | placement, the court shall commit the child to the temporary |
216 | legal custody of the department. Such commitment invests in the |
217 | department all rights and responsibilities of a legal custodian. |
218 | The department shall not return any child to the physical care |
219 | and custody of the person from whom the child was removed, |
220 | except for court-approved visitation periods, without the |
221 | approval of the court. Any order for visitation or other contact |
222 | must conform to the provisions of s. 39.0139. The term of such |
223 | commitment continues until terminated by the court or until the |
224 | child reaches the age of 18. After the child is committed to the |
225 | temporary legal custody of the department, all further |
226 | proceedings under this section are governed by this chapter. |
227 |
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228 | Protective supervision continues until the court terminates it |
229 | or until the child reaches the age of 18, whichever date is |
230 | first. Protective supervision shall be terminated by the court |
231 | whenever the court determines that permanency has been achieved |
232 | for the child, whether with a parent, another relative, or a |
233 | legal custodian, and that protective supervision is no longer |
234 | needed. The termination of supervision may be with or without |
235 | retaining jurisdiction, at the court's discretion, and shall in |
236 | either case be considered a permanency option for the child. The |
237 | order terminating supervision by the department shall set forth |
238 | the powers of the custodian of the child and shall include the |
239 | powers ordinarily granted to a guardian of the person of a minor |
240 | unless otherwise specified. Upon the court's termination of |
241 | supervision by the department, no further judicial reviews are |
242 | required, so long as permanency has been established for the |
243 | child. |
244 | Section 6. Section 753.01, Florida Statutes, is created to |
245 | read: |
246 | 753.01 Definitions.--As used in this chapter, the term: |
247 | (1) "Clearinghouse on Supervised Visitation" or |
248 | "clearinghouse" means the entity within the Institute for Family |
249 | Violence Studies in the School of Social Work of the Florida |
250 | State University, which serves as a statewide resource on |
251 | supervised visitation issues by providing technical assistance, |
252 | training, and research. |
253 | (2) "Department" means the Department of Children and |
254 | Family Services. |
255 | (3) "Exchange monitoring" means supervision of movement of |
256 | a child from the custodial to the noncustodial parent at the |
257 | start of the visit and back to the custodial parent at the end |
258 | of the visit. |
259 | (4) "Supervised visitation program" means a program |
260 | created to offer structured contact between a parent or |
261 | caregiver and one or more children in the presence of a third |
262 | person responsible for observing and ensuring the safety of |
263 | those involved. Supervised visitation programs may also include |
264 | exchange monitoring of children who are participating in court- |
265 | ordered visitation programs or exchange monitoring where there |
266 | has been mutual consent between parties for the purposes of |
267 | facilitating a visitation. |
268 | Section 7. Section 753.02, Florida Statutes, is created to |
269 | read: |
270 | 753.02 Clearinghouse responsibilities and authority.-- |
271 | (1) The clearinghouse shall have the following |
272 | responsibilities, subject to the availability of resources: |
273 | (a) To develop standards for supervised visitation |
274 | programs in order to ensure both the quality of each program and |
275 | the safety of children and families using program services. |
276 | (b) To serve as a clearinghouse on resources and research |
277 | of supervised visitation programs. |
278 | (c) To provide technical assistance and other support |
279 | services to existing and emerging supervised visitation |
280 | programs. |
281 | (d) To compile a directory of state-supervised visitation |
282 | programs containing referral information. |
283 | (e) To formulate a newsletter for supervised visitation |
284 | programs. |
285 | (f) To organize workshops and conferences that address |
286 | issues and concerns of supervised visitation programs. |
287 | (g) To compile data on the use of supervised visitation |
288 | programs. |
289 | (2) The clearinghouse may apply for grants and accept |
290 | private contributions. |
291 | Section 8. Section 753.03, Florida Statutes, is created to |
292 | read: |
293 | 753.03 Standards for supervised visitation and supervised |
294 | exchange programs.-- |
295 | (1) Within existing funds from the department, the |
296 | clearinghouse shall develop standards for supervised visitation |
297 | programs in order to ensure the safety and quality of each |
298 | program. Standards must be uniform for all the programs and must |
299 | address the purposes, policies, standards of practice, program |
300 | content, security measures, qualifications of providers, |
301 | training standards, credentials and background screening |
302 | requirements of staff, information to be provided to the court, |
303 | and data collection for supervised visitation programs. |
304 | (2) The clearinghouse shall use an advisory board to |
305 | assist in developing the standards. The advisory board must |
306 | include: |
307 | (a) Two members of the executive board of the state |
308 | chapter of the Supervised Visitation Network, appointed by the |
309 | president of the state chapter of the Supervised Visitation |
310 | Network. |
311 | (b) A representative of the Office of the State Courts |
312 | Administrator, appointed by the State Courts Administrator. |
313 | (c) A representative of the department, appointed by the |
314 | secretary of the department. |
315 | (d) A representative of the Florida Coalition Against |
316 | Domestic Violence, appointed by the executive director of the |
317 | Florida Coalition Against Domestic Violence. |
318 | (e) A representative of a local law enforcement agency, |
319 | appointed by the executive director of the Florida Sheriffs |
320 | Association. |
321 | (f) A circuit court judge who presides over domestic |
322 | violence proceedings, appointed by the Chief Justice of the |
323 | Supreme Court. |
324 | (g) A circuit court judge who presides over dependency |
325 | proceedings, appointed by the Chief Justice of the Supreme |
326 | Court. |
327 | (h) Two representatives of a supervised visitation |
328 | program, appointed by the director of the clearinghouse. |
329 | (i) A representative of the Commission on Marriage and |
330 | Family Support Initiatives. |
331 | (j) A representative of the Statewide Guardian Ad Litem |
332 | Office, appointed by the executive director of the office. |
333 | (3) The clearinghouse, in consultation with the advisory |
334 | board, shall develop criteria and procedures for approving and |
335 | rejecting certification applications for and monitoring |
336 | compliance with the certification of a supervised visitation |
337 | program. The clearinghouse shall recommend the process for |
338 | phasing in the implementation of the standards and certification |
339 | procedures and the criteria for distributing funds to eligible |
340 | programs and designating the state entity that should certify |
341 | and monitor the supervised visitation programs. |
342 | (4) The clearinghouse shall submit a preliminary report |
343 | containing its recommendations for the uniform standards by |
344 | December 31, 2007, and a final report of all recommendations, |
345 | including those related to the certification and monitoring |
346 | developed to date, by December 31, 2008, to the President of the |
347 | Senate, the Speaker of the House of Representatives, and the |
348 | Chief Justice of the Supreme Court. |
349 | Section 9. Section 753.04, Florida Statutes, is created to |
350 | read: |
351 | 753.04 Interim minimum standards for supervised visitation |
352 | programs.-- |
353 | (1) Until the standards for supervised visitation and |
354 | supervised exchange programs are developed pursuant to this |
355 | chapter and a certification and monitoring process is fully |
356 | implemented, each supervised visitation program must have an |
357 | agreement with the court and comply with the Minimum Standards |
358 | for Supervised Visitation Programs Agreement adopted by the |
359 | Supreme Court on November 17, 1999. Under this order, a |
360 | supervised visitation program shall enter into an agreement with |
361 | the circuit court or circuit courts within the geographic |
362 | jurisdiction of the program attesting to the willingness of the |
363 | program to comply with the Supreme Court's standards. |
364 | (2) Until the standards for supervised visitation and |
365 | supervised exchange programs are completed and a certification |
366 | and monitoring process is fully implemented, a supervised |
367 | visitation program may not receive grant funds for access and |
368 | visitation under 42 U.S.C. s. 669b unless the program provides |
369 | documentation to the state agency administering the grant |
370 | verifying that the program has entered into an agreement with |
371 | the circuit court as required under subsection (1). This |
372 | subsection does not obligate the state agency administering the |
373 | grant to certify a program's compliance with the Minimum |
374 | Standards for Supervised Visitation Programs Agreement. |
375 | Section 10. Section 753.05, Florida Statutes, is created |
376 | to read: |
377 | 753.05 Referrals involving child sexual abuse.-- |
378 | (1) Any supervised visitation program that wishes to |
379 | accept referrals involving child sexual abuse must have an |
380 | agreement with the court and a current affidavit of compliance |
381 | on file with the chief judge of the circuit in which the program |
382 | is located affirming that the program has agreed to comply with |
383 | the minimum standards contained in an administrative order |
384 | issued by the Chief Justice of the Supreme Court on November 17, |
385 | 1999, and provided the program has a written agreement with the |
386 | court and with the department that contains policies and |
387 | guidelines specifically related to child sexual abuse. |
388 | (2) The agreement must include provisions for the |
389 | following: |
390 | (a) Program staff who supervise visits or other contact |
391 | must have specific training in child sexual abuse provided |
392 | through the Clearinghouse on Supervised Visitation documented in |
393 | personnel files. |
394 | (b) The program must have protocols for obtaining |
395 | background material on the family prior to the initiation of |
396 | services. |
397 | (c) The program must accept only those child sexual abuse |
398 | referrals for which staff have the requisite background |
399 | material, training, and security in place to safely monitor |
400 | contact. |
401 | (d) The program must decline referrals of child sexual |
402 | abuse cases when staff lack necessary training or education, |
403 | when background material has not been received, or when lack of |
404 | security may allow revictimization of the child. |
405 | (e) The program must suspend visits in cases when the |
406 | child appears to be traumatized by the visits or when the |
407 | individual visiting or having other contact engages in |
408 | inappropriate behavior or violates program rules. |
409 | Section 11. Sections 753.001, 753.002, and 753.004, |
410 | Florida Statutes, are repealed. |
411 | Section 12. The Division of Statutory Revision is directed |
412 | to redesignate the title of chapter 753, Florida Statutes, as |
413 | "Supervised Visitation." |
414 | Section 13. This act shall take effect July 1, 2007. |