| 1 | A bill to be entitled |
| 2 | An act relating to child visitation; amending s. 39.0139, |
| 3 | F.S.; revising legislative intent; requiring probable |
| 4 | cause of sexual abuse in order to create a presumption of |
| 5 | detriment; providing that persons meeting specified |
| 6 | criteria may not visit or have contact with a child |
| 7 | without a hearing and court order; revising requirements |
| 8 | for hearing seeking to rebut a presumption of detriment; |
| 9 | revising provisions relating to hearings on whether to |
| 10 | prohibit or restrict visitation or other contact with the |
| 11 | person who is alleged to have influenced a child's |
| 12 | testimony; providing an effective date. |
| 13 |
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| 14 | Be It Enacted by the Legislature of the State of Florida: |
| 15 |
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| 16 | Section 1. Paragraph (b) of subsection (2) and subsections |
| 17 | (3), (4), and (6) of section 39.0139, Florida Statutes, are |
| 18 | amended to read: |
| 19 | 39.0139 Visitation or other contact; restrictions.- |
| 20 | (2) LEGISLATIVE FINDINGS AND INTENT.- |
| 21 | (b) It is the intent of the Legislature to protect |
| 22 | children and reduce the risk of further harm to children who |
| 23 | have been sexually abused or exploited by a parent or other |
| 24 | caregiver by placing additional requirements on judicial |
| 25 | determinations related to contact between a parent or caregiver |
| 26 | who meets the criteria under paragraph (3)(a) and a child victim |
| 27 | in any proceeding under the laws of this state visitation and |
| 28 | other contact. |
| 29 | (3) PRESUMPTION OF DETRIMENT.- |
| 30 | (a) A rebuttable presumption of detriment to a child is |
| 31 | created when a parent or caregiver: |
| 32 | 1. A court of competent jurisdiction has found probable |
| 33 | cause exists that a parent or caregiver has sexually abused a |
| 34 | child Has been the subject of a report to the child abuse |
| 35 | hotline alleging sexual abuse of any child as defined in s. |
| 36 | 39.01; |
| 37 | 2. A parent or caregiver has been found guilty of, |
| 38 | regardless of adjudication, or has entered a plea of guilty or |
| 39 | nolo contendere to, charges under the following statutes or |
| 40 | substantially similar statutes of other jurisdictions: |
| 41 | a. Section 787.04, relating to removing minors from the |
| 42 | state or concealing minors contrary to court order; |
| 43 | b. Section 794.011, relating to sexual battery; |
| 44 | c. Section 798.02, relating to lewd and lascivious |
| 45 | behavior; |
| 46 | d. Chapter 800, relating to lewdness and indecent |
| 47 | exposure; |
| 48 | e. Section 826.04, relating to incest; or |
| 49 | f. Chapter 827, relating to the abuse of children; or |
| 50 | 3. A court of competent jurisdiction has been determined a |
| 51 | parent or caregiver by a court to be a sexual predator as |
| 52 | defined in s. 775.21 or a parent or caregiver has received a |
| 53 | substantially similar designation under laws of another |
| 54 | jurisdiction. |
| 55 | (b) For purposes of this subsection, "substantially |
| 56 | similar" has the same meaning as in s. 39.806(1)(d)2. |
| 57 | (c) A person who meets any of the criteria set forth in |
| 58 | paragraph (a) may not visit or have contact with a child without |
| 59 | a hearing and order by the court. |
| 60 | (4) HEARINGS.-A person who meets any of the criteria set |
| 61 | forth in paragraph (3)(a) who seeks to begin or resume contact |
| 62 | with the child victim shall have the right to an evidentiary |
| 63 | hearing to determine whether contact is appropriate may visit or |
| 64 | have other contact with a child only after a hearing and an |
| 65 | order by the court that allows the visitation or other contact. |
| 66 | At such a hearing: |
| 67 | (a) Prior to the hearing, the court shall The court must |
| 68 | appoint an attorney ad litem or a guardian ad litem for the |
| 69 | child if one has not already been appointed. Any attorney ad |
| 70 | litem or guardian ad litem appointed shall have special training |
| 71 | in the dynamics of child sexual abuse. |
| 72 | (b) At the hearing, the court may receive and rely upon |
| 73 | any relevant and material evidence submitted to the extent of |
| 74 | its probative value, including written and oral reports or |
| 75 | recommendations from the child protective team, the child's |
| 76 | therapist, the child's guardian ad litem, or the child's |
| 77 | attorney ad litem, to the extent of its probative value in its |
| 78 | effort to determine the action to be taken with regard to the |
| 79 | child, even if these reports, recommendations, and evidence may |
| 80 | not be admissible under the rules of evidence competent in an |
| 81 | adjudicatory hearing. |
| 82 | (c) If the court finds the person proves by clear and |
| 83 | convincing evidence that the safety, well-being, and physical, |
| 84 | mental, and emotional health of the child is not endangered by |
| 85 | such visitation or other contact, the presumption in subsection |
| 86 | (3) is rebutted and the court may allow visitation or other |
| 87 | contact. The court shall enter a written order setting forth |
| 88 | findings of fact and specifying any conditions it finds |
| 89 | necessary to protect the child. |
| 90 | (d) If the court finds the person did not rebut the |
| 91 | presumption established in subsection (3), the court shall enter |
| 92 | a written order setting forth findings of fact and prohibiting |
| 93 | or restricting visitation or other contact with the child. |
| 94 | (6) ADDITIONAL CONSIDERATIONS.- |
| 95 | (a) Once a rebuttable presumption of detriment has arisen |
| 96 | under subsection (3) or if visitation is ordered under |
| 97 | subsection (4) and If a party or participant, based on |
| 98 | communication with the child or other firsthand knowledge, |
| 99 | informs the court that a person is attempting to influence the |
| 100 | testimony of the child, the court shall hold a hearing within 7 |
| 101 | business days to immediately suspend visitation or other |
| 102 | contact. The court shall then hold a hearing and determine |
| 103 | whether it is in the best interests of the child to prohibit or |
| 104 | restrict visitation or other contact with the person who is |
| 105 | alleged to have influenced the testimony of the child. |
| 106 | (b) If a child is in therapy as a result of any finding of |
| 107 | the allegations or conviction convictions contained in paragraph |
| 108 | (3)(a) and the child's therapist reports that the visitation or |
| 109 | other contact is impeding the child's therapeutic progress, the |
| 110 | court shall convene a hearing within 7 business days to review |
| 111 | the terms, conditions, or appropriateness of continued |
| 112 | visitation or other contact. |
| 113 | Section 2. This act shall take effect July 1, 2011. |