F.S.

• Author: Caballero, Alexander
• Position: Section

The Florida Legislature passed the "Keeping Children Safe Act," F.S. [section]39.0139, effective July 1, 2007, in an effort to prevent sexual abuse during visitation pursuant to judicial determinations from those persons the child is ordered to visit. The legislature's passage of this act acknowledges that a great percentage of the increasing sexual abuse to children occurs not from strangers but from persons who are known to the children. Pursuant to F.S. [section]39.0139, visitation is suspended by operation of law and a rebuttable presumption of detriment is created when any of three triggers activate the procedures in the statute.

The three triggers which activate the protective procedures set forth in F.S. [section]39.0139 and create a rebuttable presumption of detriment to a child are when:

[1] a parent or caregiver has been the subject of a report to the child abuse hotline alleging sexual abuse of any child as defined in s. 39.01; or

[2] has been found guilty of, regardless of adjudication, or has entered a plea of guilty or nolo contendere to various Florida statutes or similar statutes in other states regarding sexual abuse or abuse of a child; or

[3] has been determined by a court to be a sexual predator as defined by Florida statutes or similar laws of another jurisdiction. (1)

Once one of the above acts that create the rebuttable presumption of detriment occurs, the person may visit or have other contact with the child only after a hearing and an order by the court that allows the visitation or other contact. (2) All visitation and contact stops. A court hearing must be held before visitation or contact resumes.

At the hearing, the court appoints a guardian ad litem or attorney ad litem and employs more lenient evidentiary rules. The guardian or attorney ad litem is required to have special training in the dynamics of child sexual abuse. (3) The court may receive and rely upon any relevant and material evidence submitted, including written and oral reports, to the extent of its probative value in its effort to determine the action to be taken with regard to the child, even if these reports and evidence may not be competent in an adjudicatory hearing. (4)

The burden is on the person seeking to resume visitation to prove by clear and convincing evidence that "the safety, well-being, and physical, mental, and emotional health of the child is not endangered by visitation or other contact before the presumption in subsection (3) is rebutted and the court may allow visitation or other contact." (5) The court then enters a written order specifying any conditions it finds necessary to protect the child. (6)

If the court finds that the person did not rebut the presumption established in subsection (3), the court shall enter a written order prohibiting or restricting visitation or other contact with the child. (7) Any visitation under subparagraph (4)(d) must be either supervised by a person who has previously received special training in the dynamics of child sexual abuse or at a supervised visitation program.

The provisions of the statute do not indicate whether they apply to only Ch. 39 proceedings (shelter and dependency matters) or also to proceedings involving children under Ch. 61 (dissolution of marriage actions and supplemental actions), Ch. 742 (domestic violence actions) and other proceedings related to visitation and other contact with a child. F.S. [section]39.0139(2)(b) provides only that, "[i]t is the intent of the [l]egislature to protect children and reduce the risk of further harm to children who have been sexually abused or exploited by a parent or other caregiver by placing additional requirements on judicial determinations related to visitation and other contact." Some arguments have been made that F.S. [section]39.0139 should only be applied to Ch. 39 proceedings and not all judicial determinations related to visitation or other contact, such as dissolution cases and domestic violence cases.

However, the following reasons militate toward the application of the statute to all proceedings involving contact with children: 1) the plain language of the statute indicates application to all judicial determinations related to visitation and other contact; 2) earlier versions of F.S. [section]39.0139 limiting the provisions to Ch. 39 proceedings were modified to much broader application evidencing a legislative intent that F.S. [section]39.0139 apply beyond Ch. 39 proceedings; 3) the principles in Ch. 61 and in F.S. [section]39.0139 both provide protection for children and promote the best interest of the child and must be read in pari materia; and 4) the court's inherent jurisdiction to act for the benefit of minor children encompasses all statutory and common law.

F.S...