Florida Family Law Rewrite

A Bill To Be Entitled

An act modifying the family and juvenile law code; greatly strengthening marriage; protecting the rights of parents and children to their care, custody and association; protecting against paternity fraud; requiring paternity testing under certain circumstances; providing for child support obligations; protecting parents from the felonious acts of their minor children; protecting children and families from abuses by Protective Services and other related purposes.

EXECUTIVE SUMMARY

This act serves to make the following changes and additions to Florida Family Law:

1. Provides for the filing of private marital contracts with marriage licenses, allowing marriage partners to provide for the terms under which their marriages exist, including the terms and procedures for dissolution, division of assets, and custody of children.

2. Modifies civil liability currently assessed against parents for minor children’s felonious acts; provides for the ability of parents to forcibly emancipate children who commit felonies, voluntarily give birth or sire children out of wedlock rather than accept financial and personal responsibility for those acts.

3. Requires a paternity determination using scientific (DNA) testing before a child support order can be entered or modified against a man, allows for the recovery of all child support paid to a woman, and her prosecution for fraud and conversion, if she defrauded a man in naming him falsely the father of a child and received child support as a consequence.

4. Provides for the recovery of economic and non-economic damages from a person who files a false domestic violence petition, dismisses a protective order before hearing, or attempts to entrap an enjoined person to violate a protective order (or to contact him or her even though they have taken out that protective order.) Provides that a person who takes out a protective order and then initiates contact in violation of that order voids the order by their actions, preventing entrapment attempts.

5. Abolishes “custody” as an action at law in ordinary civil divorce actions, with exceptions provided for cases in which a parent is unfit due to abuse, neglect or abandonment of the child. Abolishes child support awards except in cases where a parent is unwilling or unable (due to being unfit) to be fully involved as a shared parent. Prohibits move-aways that have a substantive impact on parental rights and responsibilities without the consent of the parties. Requires the court to accept privately-negotiated agreements on custody, and provides a default of 50/50 parenting for parents who are unable – or unwilling – to agree between themselves. Defines acts that cause a parent to be adjudicated unfit for custody. Requires the court to honor the agreements filed in (1) above. Abolishes interim attorney fee awards. Abolishes the interest of third parties (including grandparents) to bring custody or visitation lawsuits.

6. Abolishes final fee awards from one party to the other as contrary to the interest of the litigants, in that forcing one to pay an attorney to argue against one’s own interest is an impermissible legislative act.

7. Social investigations are abolished as unnecessary in a climate where all parents are presumed fit and with equal custodial rights and responsibilities unless proven otherwise.

8. Guardian-ad-litem immunity is abolished as improper in that as persons appointed to act in the child’s best interest, and given that parents have an indivisible interest in their children, it is unconscionable to immunize GALs against tort claims for their negligent or intentional acts which harm either a parent, child, or both.

9. Strengthens protections against parental abduction by reducing the standard of proof for a court to require the cancellation of a child’s passport or other protective measures against parental kidnapping.

10. Strengthens penalties for parental kidnapping by making such an offense a second-degree felony (from third-degree) and prohibit pleas that reduce the charge to that of a misdemeanor.

11. Edit Chapter 39 of the Florida Judicial Code to modify the State’s Rights and Responsibilities related to the care of children under its custody, increasing the protection for children and requiring a higher standard of proof before children are removed from their homes. Removes immunity for negligent acts, and requires insurance or bonding to protect the right of the people to recover for harm done by the Department and their agents. Protects access to full, unedited copies of records for children and families impacted by the Department. Removes confidentiality of reporters, and immunity for false reports, from those who are the subject of said reports.

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

The Legislature finds that the current family law system in the State of Florida:

1. Has been used to derogate the fundamental social institution of marriage, has impermissibly infringed on the fundamental liberty interest, as expounded upon repeatedly by the United States Supreme Court, to the care, custody and rearing of one’s children, has been abused by individuals to prosecute vendettas and gain financial advantage, and has forced individuals to fund arguments against their own interest in court.

2. Abrogates the fundamental liberty interest that fit parents, as well as competent adults, have in setting the terms of their own marital obligations, including but not limited to matters of finance and child-rearing, as with any other contract between persons, and that such interest is an inherent and necessary component of the social institution of Marriage.

3. Has violated the Constitutional principle, as expressed in the Constitution, that a person has a right to face their accuser when criminal conduct has been alleged, has supported the removal of children from homes when no act of actual abuse or neglect is ever proven or, in many cases, even referred for prosecution, and has shielded those who have leveled those accusations from civil responsibility for their conduct.

4. Has treated some minors as adults for the purposes of criminal liability, charging them with felony offenses, while at the same time forcing parents to subsidize and even support felonious behavior.

5. Has impermissibly granted minors the right to make life decisions that empower them as adults, while denying their parents the right to declare them as adults, with all the rights, privileges and responsibilities thereto, thereby shifting the costs of such empowerment unwillingly upon the parents.

In order to redress these violations of fundamental liberty interests and Constitutional Rights, which have been perverse, pervasive and oppressive to the people of the State of Florida, the Legislature modifies the Florida State Code as follows:

Section 1. Section 741.06, Florida Statutes, is created to read:

741.06 Private Marriage License Terms Enforceable

1. Parties applying for a marriage license may attach as an integral portion of their marriage license application, privately-negotiated agreements bearing on their marriage, including but not limited to agreements on property ownership, division of assets and custody of any minor children born or adopted into the union in the event of dissolution. Such agreements may include the effect of determination of fault on any subsequent dissolution proceedings, and may waive, modify, or abrogate any doctrine of “no fault” divorce.

2. The Clerk of the Court shall be required to either accept or reject the party’s license application, including any such terms and conditions, in full and may make no modifications thereupon. The parties may make application for judicial review of any such proposed agreement prior to application for their marriage license, with costs of any such review, if requested, to be borne by the parties.

3. Parties not filing a private document shall instead file a copy of the Family Law Handbook, referenced in Section 741.0306, as of the date of the marriage license application.

4. The terms of any such agreement associated with and attached to the party’s marriage license shall inure and bind the celebrants and their estate(s), in common and separately, in perpetuity, and no modification of the Statutes shall retroactively modify the rights, responsibilities, and contractual obligations set forth in the original application.

5. The terms of any such agreement may be modified only by a voluntarily-written document, signed and notarized by both parties, and filed with the Clerk of the Court where the original license issued. No act of the Legislature, nor any arm or instrumentality of the State, whether explicit or implicit, shall require that such a modification be filed.

6. The pleading of such a document shall bind any court of competent jurisdiction in the State Of Florida to the terms and remedies therein, and the Courts of the State of Florida shall retain jurisdiction in order to enforce the terms of any such agreement, irrespective of the later domicile of the celebrants of the marriage in question.

7. As the privacy of marital couples is a compelling interest, the terms of such agreements filed with marriage license applications shall be non-public documents and available only to the celebrants or their respective estates, and immune from public disclosure. A person publishing or disseminating these agreements without the explicit authorization of one of the celebrants to the marriage shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

8. The parties to a marriage who reside in the State of Florida who do not currently have such a document attached to their marriage license, whether their license was originally issued in this state or any other, may re-file their marriage license with the State of Florida and attach such terms to their license at any date of their choosing.

Section 61.043 is hereby modified to read as follows:

61.043 Commencement of a proceeding for dissolution of marriage or for alimony and child support; dissolution questionnaire.--

(1) A proceeding for dissolution of marriage or a proceeding under s. 61.09 shall be commenced by filing in the circuit court a petition entitled "In re the marriage of _____, husband, and _____, wife." A copy of the petition together with a copy of a summons shall be served upon the other party to the marriage in the same manner as service of papers in civil actions generally. The petition shall include the terms of the marital agreement filed with the party’s original marriage license, as amended by the parties, or a statement that no such document was ever filed by the parties to the marriage.

9. Section 61.052 is modified to read as follows:

61.052 Dissolution of marriage.--

(1) No judgment of dissolution of marriage shall be granted unless one of the following facts appears, which shall be pleaded generally:

(a) The marriage is irretrievably broken and either:

1. The parties do not have a marriage agreement filed with their marriage license, either in Florida or any other state, or

2. The parties do have a marriage agreement and the irretrievable breakdown of the marriage falls within one of the permissible areas of the marriage agreement for dissolution of the party’s marriage. If such an agreement exists the marriage agreement must be attached to and filed with the petition for dissolution.

Section 2. Civil Liability for Minor Children Modified; Forcible Emancipation Option for Parents Upon Commission of a Felony Offense or Unmarried Birth:

Section 741.24 is modified to read:

741.24 Civil action against parents; willful destruction or theft of property by minor.--

(1) Any municipal corporation, county, school district, or department of Florida; any person, partnership, corporation, or association; or any religious organization, whether incorporated or unincorporated, shall be entitled to recover damages in an appropriate action at law, in a court of competent jurisdiction, from the parents of any minor under the age of 18 years, living with the parents, who maliciously or willfully destroys or steals property, real, personal, or mixed, belonging to such municipal corporation, county, school district, department of the state, person, partnership, corporation, association, or religious organization provided that the acts described herein constitute a misdemeanor. If the acts constitute a felony offense, and one or both parents file a forcible emancipation petition upon conviction for the predicate felony, the right of recovery against the parents so moving the court shall be set aside and of no force or effect.

Section 743.097 of the Florida Code is hereby created as follows:

743.097 Forcible Emancipation of Minors by Parents Upon the Commission of Certain Acts

A circuit court shall be required to remove the disability of Non-Age from a minor upon petition from one or both of the minor’s parents in the event:

(1) That the minor is adjudicated guilty, by trial or any plea establishing guilt, including one of nolo-contendre, for a felony offense in this state, irrespective of the minor’s age. Such a declaration of legal adulthood by the Circuit Court shall operate to release the parents of said minor from all rights and obligations of parenthood towards said former minor, including but not limited to the duty of support, shelter and education.

(2) That said minor, being female, through a voluntary act becomes pregnant and gives birth to a child out of wedlock without the consent of all parent(s) of said minor having legal custody of said minor, irrespective of the minor’s age.

(3) That said minor, being male, through a voluntary act sires a child out of wedlock without the consent of all parent(s) of said minor having legal custody of said minor, irrespective of the minor’s age.

(4) The criminal offense of statutory rape, irrespective of whether the minor is the offender or victim, shall not disabuse the voluntary nature of the act(s) giving rise to a child born out of wedlock for the purposes of this section.

Section 3: The Legislature finds that the current implementation of the law with regards to paternity determinations often causes men to pay child support for children who are not theirs, and often rewards women for making false statements of paternity. It is therefore the public policy of the State of Florida that the following revisions shall be made to Chapter 742, in the form of the following changes:

742.12 Scientific testing to determine paternity.--

(1) In any proceeding to establish paternity, the court on its own motion shall~~may~~ require the child, mother, and alleged fathers to submit to scientific tests that are generally acceptable within the scientific community to show a probability of paternity. The court shall direct that the tests be conducted by a qualified technical laboratory.

(2) In any proceeding to establish paternity, the court shall~~may~~, upon request of a party providing a sworn statement or written declaration as provided by s. 92.525(2) alleging paternity and setting forth facts establishing a reasonable possibility of the requisite sexual contact between the parties or providing a sworn statement or written declaration denying paternity and setting forth facts establishing a reasonable possibility of the nonexistence of sexual contact between the parties, require the child, mother, and alleged fathers to submit to scientific tests that are generally acceptable within the scientific community to show a probability of paternity. The court shall direct that the tests be conducted by a qualified technical laboratory.

(3) The test results, together with the opinions and conclusions of the test laboratory, shall be filed with the court. Any objection to the test results must be made in writing and must be filed with the court at least 10 days prior to the hearing. If no objection is filed, the test results shall be admitted into evidence without the need for predicate to be laid or third-party foundation testimony to be presented. Nothing in this paragraph prohibits a party from calling an outside expert witness to refute or support the testing procedure or results, or the mathematical theory on which they are based. Upon the entry of the order for scientific testing, the court must inform each person to be tested of the procedure and requirements for objecting to the test results and of the consequences of the failure to object.

(4) Test results are admissible in evidence and should be weighed along with other evidence of the paternity of the alleged father unless the statistical probability of paternity equals or exceeds 95 percent. A statistical probability of paternity of 95 percent or more creates a rebuttable presumption, as defined by s. 90.304, that the alleged father is the biological father of the child. If a party fails to rebut the presumption of paternity which arose from the statistical probability of paternity of 95 percent or more, the court may enter a summary judgment of paternity. If the test results show the alleged father cannot be the biological father, the case shall be dismissed with prejudice.

(5) Subject to the limitations in subsection (3), if the test results or the expert analysis of the inherited characteristics is disputed, the court, upon reasonable request of a party, shall order that an additional test be made by the same laboratory or an independent laboratory at the expense of the party requesting additional testing.

(6) Verified documentation of the chain of custody of the blood or other specimens is competent evidence to establish the chain of custody.

(7) The fees and costs for scientific tests shall be paid by the non-prevailing party ~~parties in proportions and~~ at times determined by the court unless the parties reach a stipulated agreement which is adopted by the court.

(8) No application for child support, or modification of an existing order that results in other than a zero ($0) dollar award, may be filed against a man under Florida Statutes, irrespective of the provisions of any other Chapter, without documented scientific evidence of paternity, except in cases where a child has been adopted by the putative father.

(9) Any man against whom child support has been levied, or is currently being levied, and who has not adopted the child involved, may contest the paternity of the child covered by such order, irrespective of his marriage to the mother of the child at the time. The court shall order scientific testing in accordance with this section upon presentation of the motion for same, with the following results:

a. If paternity is established under 742.12, then the man filing the motion shall pay all costs and expenses and his paternity shall become unconstestable.

b. If paternity is disproved, the man alleged to have been the father and who has been paying child support shall have all of the following remedies:

i. An immediate judgment for all of the paid child support to date shall issue, subject to an interest rate of 6% per annum from the date of payment, compounded monthly. Such judgment shall be rendered with malice as the gist of the action, shall be immune from discharge in bankruptcy, and shall be enforceable immediately by a writ of seizure of any assets currently held by the woman to whom the funds have been paid.

ii. The right to prefer criminal charges against the woman who alleged that he was the father with the offence of criminal fraud and conversion in the amount of the support collected under false pretense. The District Attorney shall proceed upon and prosecute any complaint filed under this section by a man falsely accused of paternity.

The statute of limitations shall run seven (7) years following the child’s 18^th birthday covered by the support order.

Section 4: The Legislature finds Section 741.28-31 (Domestic Violence) contains multiple opportunities for abuse of civil rights, and such abuses are frequently employed as tactical measures in divorce and custody actions. As such the following modifications to the domestic violence code are made:

Section 741.311 is hereby created to read as follows:

Section 741.311 Recovery of economic and non-economic damages from dismissed or false petitions; criminal prosecution required for perjury; dismissal upon intentional act of petitioner to violate injunction.

A person named as a respondent in a domestic violence petition shall have a right of recovery against the petitioner for all costs and expenses incurred as a consequence of the injunction filed against him or her, whether economic or non-economic in nature, including but not limited to actual loss of use of any residential or personal property, expenses to replace clothing or personal effects as a consequence of lack of access to same, non-economic harm for infringement of parental rights with respect to any children of the parties, and all consequential and incidental damages associated therein, if:

1. The complaint is dismissed by the petitioner prior to hearing, or

2. No prosecution is recommended, the charge(s) are dismissed, or the respondent is found not guilty in any resulting trial for the predicate act(s) giving rise to the original complaint, or

3. The petitioner, as a voluntary act, at any time attempts to or actually initiates contact with or causes a violation of the order by the respondent, either with the intent to entrap in a violation or for genuine purposes, against whom he or she has obtained an injunction under this section, or

4. Any material element of the petition requesting the original protective order is found, at hearing, to be false.

In the event of a finding of falsity of any material element of the petition for a protective order, the Court shall refer the matter to the District Attorney and the District Attorney shall prosecute the petitioner for perjury. Such prosecution shall be in addition to, and not in substitution for, the rights of recovery under this section.

The Court shall dismiss any injunctive Domestic Violence order if, upon hearing, it is established that petitioner attempted to, or actually did, cause contact to be initiated or any provision of the injunctive order to be violated, whether for genuine purposes or for the purpose of entrapment of the respondent.

Section 5: Custody of the Child Abolished Except in Cases of Abuse, Neglect or Abandonment; cures; parental rights established at birth for both natural parents except in cases of adoption or surrogacy.

It is the finding of the Legislature that parents have a fundamental liberty interest in the custody, care and control of their minor children, irrespective of whether the parents are or ever were in a state of marriage. As such the Legislature modifies the following sections of the Florida Statutes to remove “custody” as a cause of action that may be litigated within this state, provided that both parents are fit. It is the further finding of the Legislature that the best interest of children is served by the personal care and custody of their parents, and that such fundamental liberty interests shall be protected unless good and sufficient cause is shown for abrogating those rights, which shall be limited to abandonment or proof by a criminal standard of neglect, abuse, or other conduct that renders one or both parents unfit. Finally, it is the intent of the legislature to allow celebrants to a marriage to determine among themselves modifications to this general public policy, which are to be recorded along with the marriage licenses associated with said celebrants, as otherwise provided for in this act.

To implement these findings the Legislature makes the following modifications:

1. Section 742.031(2) is hereby stricken in its entirety.

2. The following sections of the Florida Statutes are modified as shown:

61.052 Dissolution of marriage.--

(1) No judgment of dissolution of marriage shall be granted unless one of the following facts appears, which shall be pleaded ~~generally~~:

(a) ~~(a)~~ The marriage is irretrievably broken and either:

1. The parties have no agreement attached to their marriage license in any jurisdiction, or

2. The parties do have such an agreement and under its terms the marriage meets the irretrievably broken test specified therein, or

3. The parties consent to the dissolution of marriage, irrespective of prior agreement of the parties.

(b) Mental incapacity of one of the parties. However, no dissolution shall be allowed unless the party alleged to be incapacitated shall have been adjudged incapacitated according to the provisions of s. 744.331 for a preceding period of at least 3 years. Notice of the proceeding for dissolution shall be served upon one of the nearest blood relatives or guardian of the incapacitated person, and the relative or guardian shall be entitled to appear and to be heard upon the issues. If the incapacitated party has a general guardian other than the party bringing the proceeding, the petition and summons shall be served upon the incapacitated party and the guardian; and the guardian shall defend and protect the interests of the incapacitated party. If the incapacitated party has no guardian other than the party bringing the proceeding, the court shall appoint a guardian ad litem to defend and protect the interests of the incapacitated party. However, in all dissolutions of marriage granted on the basis of incapacity, the court may require the petitioner to pay alimony pursuant to the provisions of s. 61.08.

(2) Based on the evidence at the hearing, which evidence need not be corroborated except to establish that the residence requirements of s. 61.021 are met which may be corroborated by a valid Florida driver's license, a Florida voter's registration card, a valid Florida identification card issued under s. 322.051, or the testimony or affidavit of a third party, the court shall dispose of the petition for dissolution of marriage when the petition is based on the allegation that the marriage is irretrievably broken as follows:

(a) If there is no minor child of the marriage and if the responding party does not, by answer to the petition for dissolution, deny that the marriage is irretrievably broken, the court shall enter a judgment of dissolution of the marriage if the court finds that the marriage is irretrievably broken.

(b) When there is a minor child of the marriage, or when the responding party denies by answer to the petition for dissolution that the marriage is irretrievably broken, the court may:

1. Order either or both parties to consult with a marriage counselor, psychologist, psychiatrist, minister, priest, rabbi, or any other person deemed qualified by the court and acceptable to the party or parties ordered to seek consultation; or

2. Continue the proceedings for a reasonable length of time not to exceed 3 months, to enable the parties themselves to effect a reconciliation; or

3. Take such other action as may be in the best interest of the parties and the minor child of the marriage.

If, at any time, the court finds that the marriage is irretrievably broken, the court shall enter a judgment of dissolution of the marriage. If the court finds that the marriage is not irretrievably broken, it shall deny the petition for dissolution of marriage.

At all times in such proceedings the court shall honor any filed marital agreement with the issuance of the original marriage license and any amendment or modification thereto made by the parties, and may not deviate from the terms therein.

(3) During any period of continuance, the court may make appropriate orders for the support and alimony of the parties; the primary residence, ~~custody, rotating custody, visitation, support, maintenance, and education of the minor child of the marriage; attorney's fees;~~ and the preservation of the property of the parties. Orders pertaining to custody, visitation, support, maintenance and education of the minor children of the parties, if any, may be made only if one or both of the parents is adjudicated unfit or has abandoned their family responsibilities as set forth in s. 61.13.3.

(4) A judgment of dissolution of marriage shall result in each spouse having the status of being single and unmarried. No judgment of dissolution of marriage renders the child of the marriage a child born out of wedlock.

(5) The court ~~may~~ shall enforce an antenuptial agreement to arbitrate a dispute in accordance with the law and tradition chosen by the parties.

(6) Any injunction for protection against domestic violence arising out of the dissolution of marriage proceeding shall be issued as a separate order in compliance with chapter 741 and shall not be included in the judgment of dissolution of marriage.

(7) In the initial pleading for a dissolution of marriage as a separate attachment to the pleading, each party is required to provide his or her social security number and the full names and social security numbers of each of the minor children of the marriage.

(8) Pursuant to the federal Personal Responsibility and Work Opportunity Reconciliation Act of 1996, each party is required to provide his or her social security number in accordance with this section. Each party is also required to provide the full name, date of birth, and social security number for each minor child of the marriage. Disclosure of social security numbers obtained through this requirement shall be limited to the purpose of administration of the Title IV-D program for child support enforcement.

61.071 Alimony pendente lite~~; suit money~~.--In every proceeding for dissolution of the marriage, a party may claim alimony ~~and suit money~~ in the petition or by motion, and if the petition is well founded, the court shall allow a reasonable sum therefor. If a party in any proceeding for dissolution of marriage claims alimony ~~or suit money~~ in his or her answer or by motion, and the answer or motion is well founded, the court shall allow a reasonable sum therefor.

61.075 Equitable distribution of marital assets and liabilities.--

(1) In a proceeding for dissolution of marriage, in addition to all other remedies available to a court to do equity between the parties, or in a proceeding for disposition of assets following a dissolution of marriage by a court which lacked jurisdiction over the absent spouse or lacked jurisdiction to dispose of the assets, the court shall set apart to each spouse that spouse's nonmarital assets and liabilities, and in distributing the marital assets and liabilities between the parties, the court must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors, including:

(a) The contribution to the marriage by each spouse, including contributions to the care and education of the children and services as homemaker.

(b) The economic circumstances of the parties.

(d) Any interruption of personal careers or educational opportunities of either party.

(e) The contribution of one spouse to the personal career or educational opportunity of the other spouse.

(f) The desirability of retaining any asset, including an interest in a business, corporation, or professional practice, intact and free from any claim or interference by the other party.

(g) The contribution of each spouse to the acquisition, enhancement, and production of income or the improvement of, or the incurring of liabilities to, both the marital assets and the nonmarital assets of the parties.

(h) The desirability of retaining the marital home as a residence for any dependent child of the marriage, or any other party, when it would be equitable to do so, it is in the best interest of the child or that party, and it is financially feasible for the parties to maintain the residence until the child is emancipated or until exclusive possession is otherwise terminated by a court of competent jurisdiction. In making this determination, the court shall first determine if it would be in the best interest of the dependent child to remain in the marital home; and, if not, whether other equities would be served by giving any other party exclusive use and possession of the marital home.

(i) The intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition or within 2 years prior to the filing of the petition.

(j) Any other factors necessary to do equity and justice between the parties

Irrespective of the factors above and elsewhere in Chapter 61, the marital agreement filed with the parties’ marriage license, whether prenuptial or ante-nuptial, shall control over all considerations above. No court may set aside such an agreement and make an award contrary to its terms.

61.08 Alimony.--

(1) In a proceeding for dissolution of marriage, the court may grant alimony to either party, which alimony may be rehabilitative or permanent in nature. In any award of alimony, the court may order periodic payments or payments in lump sum or both. The court may consider the adultery of either spouse and the circumstances thereof in determining the amount of alimony, if any, to be awarded. In all dissolution actions, the court shall include findings of fact relative to the factors enumerated in subsection (2) supporting an award or denial of alimony. Any award of Alimony must be made with due regard to any Marital Agreement filed with the parties marriage license and may not contravene its provisions.

61.09 Alimony and child support unconnected with dissolution.--If a person having the ability to contribute to the maintenance of his or her spouse and support of his or her minor child fails to do so, the spouse who is not receiving support or who has custody of the child or with whom the child has primary residence may apply to the court for alimony and for support for the child without seeking dissolution of marriage, and the court shall enter an order as it deems just and proper, if it finds that the other parent is either unfit or has abandoned the family as defined in s. 61.13.3.

History.--ss. 1, 2, ch. 3581, 1885; RS 1485; GS 1933; RGS 3196; CGL 4988; s. 2, ch. 29737, 1955; s. 1, ch. 65-498; s. 16, ch. 67-254; s. 11, ch. 71-241; s. 116, ch. 86-220; s. 320, ch. 95-147.

Note.--Former s. 65.09.

61.10 Adjudication of obligation to support spouse or minor child unconnected with dissolution~~; child custody, child's primary residence, and visitation~~.--Except when relief is afforded by some other pending civil action or proceeding, a spouse residing in this state apart from his or her spouse and minor child, ~~whether or not such separation is through his or her fault,~~ may obtain an adjudication of obligation to maintain the spouse and minor child, if any. The court shall adjudicate his or her financial obligations to the spouse and child., ~~shall establish the child's primary residence, and shall determine the custody and visitation rights of the parties.~~ A party who is at fault is barred from bringing such a proceeding and, except where the court finds that a parent is unfit under s. 61.13.3 it shall not make an award of custody or visitation. Such an action does not preclude either party from maintaining any other proceeding under this chapter for other or additional relief at any time.

History.--s. 1, ch. 61-112; s. 16, ch. 67-254; s. 12, ch. 71-241; s. 117, ch. 86-220; s. 321, ch. 95-147.

61.13 Custody and support of children; visitation rights; power of court in making orders.--

(1)(a) In a proceeding for dissolution of marriage, the court may at any time order either or both parents who owe a duty of support to a child to pay support in accordance with the guidelines in s. 61.30 only if it finds that a parent is unfit under s. 61.13.3. The court initially entering an order requiring one or both parents to make child support payments shall have continuing jurisdiction after the entry of the initial order to modify the amount and terms and conditions of the child support payments ~~when the modification is found necessary by the court in the best interests of the child,~~ when the child reaches majority, or when there is a substantial change in the circumstances of the parties in accordance with this Chapter. The court initially entering a child support order shall also have continuing jurisdiction to require the obligee to report to the court on terms prescribed by the court regarding the disposition of the child support payments.

(b) Each order for support shall contain a provision for health care coverage for the minor child when the coverage is reasonably available. Coverage is reasonably available if either the obligor or obligee has access at a reasonable rate to a group health plan. The court may require the obligor either to provide health care coverage or to reimburse the obligee for the cost of health care coverage for the minor child when coverage is provided by the obligee. In either event, the court shall apportion the cost of coverage, and any noncovered medical, dental, and prescription medication expenses of the child, to both parties by adding the cost to the basic obligation determined pursuant to s. 61.30(6). The court may order that payment of uncovered medical, dental, and prescription medication expenses of the minor child be made directly to the obligee on a percentage basis. The court may require either party to provide health care coverage and will apportion the cost thereof between the parties in direct relationship to their respective net incomes, and add any such net amount due from one party to another to a basic obligation under s. 61.30(6). If no child support is otherwise ordered, the court may enter a medical support order compelling the non-providing parent to reimburse the paying parent for their ratable percentage of medical insurance. Uncovered medical, dental and prescription medications are to be ratably assessed against the parents, and payment made from the parent with the greater income to the one with the lesser, according to the ratable net income of the parties.

(b) All child and medical support orders must contain an automatic termination clause upon the earliest occurrence of the child involved (1) reaching the age of 18 years, (2) becoming emancipated through their own petition or that of their parents, or (3) ceasing to reside with the parent receiving the support payment. Obligees shall report to both the obligor and the court within ten (10) days:

1. The departure of the child from the household, whether voluntarily or involuntarily.

2. Any act of emancipation, including marriage of the child or an act subject to forcible emancipation under s. 743.097

3. The child reaching the age of 18 years.

An order for child or medical support is void upon the occurrence of any of the above events and any amount paid subsequent to those events is forfeit to the obligor upon demand.

(c) Any child or medical support order that operates to provide for an obligation beyond any of the above events is void on its face as contrary to the public policy of the State of Florida.

1. In a non-Title IV-D case, a copy of the court order for health care coverage shall be served on the obligor's union or employer by the obligee when the following conditions are met:

a. The obligor fails to provide written proof to the obligee within 30 days after receiving effective notice of the court order, that the health care coverage has been obtained or that application for coverage has been made;

b. The obligee serves written notice of intent to enforce an order for health care coverage on the obligor by mail at the obligor's last known address; and

c. The obligor fails within 15 days after the mailing of the notice to provide written proof to the obligee that the health care coverage existed as of the date of mailing.

2.a. A support order enforced under Title IV-D of the Social Security Act which requires that the obligor provide health care coverage is enforceable by the department through the use of the national medical support notice, and an amendment to the support order is not required. The department shall transfer the national medical support notice to the obligor's union or employer. The department shall notify the obligor in writing that the notice has been sent to the obligor's union or employer, and the written notification must include the obligor's rights and duties under the national medical support notice. The obligor may contest the withholding required by the national medical support notice based on a mistake of fact. To contest the withholding, the obligor must file a written notice of contest with the department within 15 business days after the date the obligor receives written notification of the national medical support notice from the department. Filing with the department is complete when the notice is received by the person designated by the department in the written notification. The notice of contest must be in the form prescribed by the department. Upon the timely filing of a notice of contest, the department shall, within 5 business days, schedule an informal conference with the obligor to discuss the obligor's factual dispute. If the informal conference resolves the dispute to the obligor's satisfaction or if the obligor fails to attend the informal conference, the notice of contest is deemed withdrawn. If the informal conference does not resolve the dispute, the obligor may request an administrative hearing under chapter 120 within 5 business days after the termination of the informal conference, in a form and manner prescribed by the department. However, the filing of a notice of contest by the obligor does not delay the withholding of premium payments by the union, employer, or health plan administrator. The union, employer, or health plan administrator must implement the withholding as directed by the national medical support notice unless notified by the department that the national medical support notice is terminated.

b. In a Title IV-D case, the department shall notify an obligor's union or employer if the obligation to provide health care coverage through that union or employer is terminated.

3. In a non-Title IV-D case, upon receipt of the order pursuant to subparagraph 1., or upon application of the obligor pursuant to the order, the union or employer shall enroll the minor child as a beneficiary in the group health plan regardless of any restrictions on the enrollment period and withhold any required premium from the obligor's income. If more than one plan is offered by the union or employer, the child shall be enrolled in the group health plan in which the obligor is enrolled.

4.a. Upon receipt of the national medical support notice under subparagraph 2. in a Title IV-D case, the union or employer shall transfer the notice to the appropriate group health plan administrator within 20 business days after the date on the notice. The plan administrator must enroll the child as a beneficiary in the group health plan regardless of any restrictions on the enrollment period, and the union or employer must withhold any required premium from the obligor's income upon notification by the plan administrator that the child is enrolled. The child shall be enrolled in the group health plan in which the obligor is enrolled. If the group health plan in which the obligor is enrolled is not available where the child resides or if the obligor is not enrolled in group coverage, the child shall be enrolled in the lowest cost group health plan that is available where the child resides.

b. If health care coverage or the obligor's employment is terminated in a Title IV-D case, the union or employer that is withholding premiums for health care coverage under a national medical support notice must notify the department within 20 days after the termination and provide the obligor's last known address and the name and address of the obligor's new employer, if known.

5.a. The amount withheld by a union or employer in compliance with a support order may not exceed the amount allowed under s. 303(b) of the Consumer Credit Protection Act, 15 U.S.C. s. 1673(b), as amended. The union or employer shall withhold the maximum allowed by the Consumer Credit Protection Act in the following order:

(I) Current support, as ordered.

(II) Premium payments for health care coverage, as ordered.

(III) Past due support, as ordered.

(IV) Other medical support or coverage, as ordered.

b. If the combined amount to be withheld for current support plus the premium payment for health care coverage exceed the amount allowed under the Consumer Credit Protection Act, and the health care coverage cannot be obtained unless the full amount of the premium is paid, the union or employer may not withhold the premium payment. However, the union or employer shall withhold the maximum allowed in the following order:

(I) Current support, as ordered.

(II) Past due support, as ordered.

(III) Other medical support or coverage, as ordered.

6. The Department of Revenue may adopt rules to administer the child support enforcement provisions of this section which affect Title IV-D cases.

(c) To the extent necessary to protect an award of child support, the court may order the obligor to purchase or maintain a life insurance policy or a bond, or to otherwise secure the child support award with any other assets which may be suitable for that purpose.

(d)1. Unless the provisions of subparagraph 32. apply, all child support orders entered on or after January 1, 1985, shall direct that the payments of child support be made as provided in s. 61.181 through the depository in the county where the court is located. All child support orders shall provide the full name, date of birth, and social security number of each minor child who is the subject of the child support order.

2. Unless the provisions of subparagraph 3. apply, all child support orders entered before January 1, 1985, shall be modified by the court to direct that payments of child support shall be made through the depository in the county where the court is located upon the subsequent appearance of either or both parents to modify or enforce the order, or in any related proceeding.

3. If both parties request and the court finds that it is in the best interest of the child, support payments need not be directed through the depository. The order of support shall provide, or shall be deemed to provide, that either party may subsequently apply to the depository to require direction of the payments through the depository. The court shall provide a copy of the order to the depository. 2. The parties may not be compelled to use the depository unless the obligor has failed to meet his or her obligations in at least one of the preceding twelve (12) months.

4. If the parties elect not to require that support payments be made through the depository, any party may subsequently file an affidavit with the depository alleging a default in payment of child support and stating that the party wishes to require that payments be made through the depository. The party shall provide copies of the affidavit to the court and to each other party. Fifteen days after receipt of the affidavit, the depository shall notify both parties that future payments shall be paid through the depository. Filing of a false affidavit of default shall be punished as an act of perjury.

5. In IV-D cases, the IV-D agency shall have the same rights as the obligee in requesting that payments be made through the depository.

(e) In a judicial circuit with a work experience and job training pilot project, if the obligor is unemployed or has no income and does not have an account at a financial institution, then the court shall order the obligor to seek employment, if the obligor is able to engage in employment, and to immediately notify the court upon obtaining employment, upon obtaining any income, or upon obtaining any ownership of any asset with a value of $500 or more. If the obligor is still unemployed 30 days after any order for support, the court may order the obligor to enroll in the work experience, job placement, and job training pilot program for noncustodial parents as established in s. 409.2565, if the obligor is eligible for entrance into the pilot program.

(2)(a) The court shall have jurisdiction to determine custody, notwithstanding that the child is not physically present in this state at the time of filing any proceeding under this chapter, if it appears to the court that the child was removed from this state for the primary purpose of removing the child from the jurisdiction of the court in an attempt to avoid a determination or modification of custody. The court shall not have jurisdiction to determine custody of a child absent a parent being unfit as defined in s 61.13.3. Unless the definitions of s. 61.13.3 are met, the court’s jurisdiction is limited to enforcing the fundamental liberty interest of care and custody that vests equally in both parents at the time of birth of the child.

The court shall foster an environment where the parents will come to agreement on matters of residential care, custody and support of the minor child, and shall honor all private agreements made by the parties in such matters unless it finds, by clear and convincing evidence, that the results of such an order would be unjust to either of the parents or the child. In attempting to reach such an agreement the court may order mediation or joint counseling, to be paid for equally by the parties.

Should the parents fail to come to agreement, unless a parent is unfit as defined in s. 61.13.3, the court shall order shared residential parenting, with each parent having physical custody approximately 50% of the time, and shall not order child support to be paid with the exception of a medical support order as defined under s. 61.13.1(b).

(b)1. The court shall determine all matters relating to custody of each minor child of the parties in accordance ~~with the best interests of the child and in accordance~~ with the Uniform Child Custody Jurisdiction and Enforcement Act. This state recognizes the fundamental liberty interest that inures to parents in the custody, care and support of their minor children, and that fit parents are presumed to be, and shall be allowed to, make decisions about their child’s associations and relationships in the best interest of their children. It is the public policy of this state to assure that each minor child has frequent and continuing contact with both parents after the parents separate or the marriage of the parties is dissolved and to encourage parents to share the rights and responsibilities, and joys, of childrearing. It is also the public policy of this state to confer these rights only upon parents, whether natural or adopted, and not to third parties, including grandparents, domestic partners or others. After considering all relevant facts, the father of the child shall be given the same consideration as the mother in determining the primary residence of a child irrespective of the age or sex of the child. The genders of the parties, the gender of any minor children and their ages shall in no way prejudice any decision of the court.

2. The court shall order that the parental responsibility for a minor child be shared by both parents unless the court finds that shared parental responsibility would be detrimental to the child as defined in this section. Evidence that a parent has been convicted of a felony of the third degree or higher involving domestic violence, as defined in s. 741.28 and chapter 775, or meets the criteria of s. 39.806(1)(d), or meets the criteria of an unfit parent under s. 61.13.3 creates a ~~rebuttable~~ presumption of detriment to the child. ~~If the presumption is not rebutted, shared parental responsibility, including visitation, residence of the child, and decisions made regarding the child, may not be granted to the convicted parent.~~ However, the convicted or unfit parent is not relieved of any obligation to provide financial support. If the court determines that shared parental responsibility would be detrimental to the child due to a conviction or parental unfitness, as defined herein, it may order sole parental responsibility and make such arrangements for visitation as will best protect the child or abused spouse from further harm. ~~Whether or not there is a conviction of any offense of domestic violence or child abuse or the existence of an injunction for protection against domestic violence, the court shall~~ The court shall not consider ~~evidence~~ claims of domestic violence or child abuse as evidence of detriment to the child unless the claims include conviction for an offense related to domestic violence or child abuse. If the claim of child abuse or domestic violence is currently under criminal investigation the court shall defer final adjudication on the petition until disposition of that investigation.

a. In ordering shared parental responsibility, the court may consider the expressed desires of the parents and may grant to one party the ultimate responsibility over specific aspects of the child's welfare or may divide those responsibilities between the parties based on ~~the best interests of the child~~agreement of the parties. Areas of responsibility may include primary residence, education, medical and dental care, and any other responsibilities that the court finds unique to a particular family.

b. The court shall order "sole parental responsibility, with or without visitation rights, to the other parent ~~when it is in the best interests of" the minor child.~~only when the definition of an unfit parent is met under s. 61.13.3

c. The court may award the grandparents visitation rights with a minor child if it is in the child's best interest. Grandparents have legal standing to seek judicial enforcement of such an award. This section does not require that grandparents be made parties or given notice of dissolution pleadings or proceedings, nor do grandparents have legal standing as "contestants" as defined in ¹~~s. 61.1306. A court may not order that a child be kept within the state or jurisdiction of the court solely for the purpose of permitting visitation by the grandparents.~~

3. Access to records and information pertaining to a minor child, including, but not limited to, medical, dental, and school records, may not be denied to a parent because the parent is not the child's primary residential parent. Full rights under this subparagraph apply to either parent unless a court order specifically revokes these rights, including any restrictions on these rights as provided in a domestic violence injunction. A parent having rights under this subparagraph has the same rights upon request as to form, substance, and manner of access as are available to the other parent of a child, including, without limitation, the right to in-person communication with medical, dental, and education providers.

(c) The circuit court in the county in which either parent and the child reside or the circuit court in which the original award of custody was entered have jurisdiction to modify an award of child custody. The court may change the venue in accordance with s. 47.122.

(d) No presumption shall arise in favor of or against a request to relocate when a primary residential parent seeks to move the child and the move will materially affect the current schedule of contact and access with the secondary residential parent. In making a determination as to whether the primary residential parent may relocate with a child, the court must consider the following factors:

~~1. Whether the move would be likely to improve the general quality of life for both the residential parent and the child.~~

~~2. The extent to which visitation rights have been allowed and exercised.~~

~~3. Whether the primary residential parent, once out of the jurisdiction, will be likely to comply with any substitute visitation arrangements.~~

~~4. Whether the substitute visitation will be adequate to foster a continuing meaningful relationship between the child and the secondary residential parent.~~

~~5. Whether the cost of transportation is financially affordable by one or both parties.~~

~~6. Whether the move is in the best interests of the child.~~

It is a direct violation of the fundamental liberty interests of both the child and a non-moving parent for a parent to relocate with a child unless it is by the agreement of both parents if such relocation will in any way impair the free exercise of shared parenting rights and responsibilities. Such petitions or motions shall be granted only if (1) the parents have agreed to the relocation and concurrent modification of custodial and support rights and obligations, or (2) the non-moving parent is unfit as defined in s. 61.13.3.

(3) A parent shall be declared unfit to hold shared custody of a child if any of the following applies to that parent:

a. The parent has been convicted of an offense of domestic violence or child abuse, whether by plea or trial, even if the plea was of nolo-contendre and even if adjudication was withheld, of the other parent of the child, any person residing in the same household as the parent, the child involved in the instant case or of any child in the previous ten (10) years.

b. The parent is under indictment or criminal complaint for an offense in (3.a) above, irrespective of the party against whom the offense is alleged, however, the disability conferred thereby shall be lifted immediately upon the dismissal or not-guilty disposition of the instant case(s).

c. The parent has been convicted of a felony within the preceding five (5) years, or for any felony under which the sentence has not been completely served, including any deferred sentence, probation or other court supervision.

d. The parent has attempted to kidnap, secret, conceal or otherwise abrogate the other parent’s parental rights with respect to the child, irrespective of success. Evidence of such attempts shall include, but is not limited to, a conviction for parental abduction, custodial interference, or any lesser-included offense.

e. The parent has made a false allegation of domestic violence or child abuse against the other parent during or closely coincident with a custody or divorce action. For the purposes of this section an allegation is deemed false if it does not result in criminal charges for the conduct alleged, if those charges are dismissed, or if the respondent/defendant is found not guilty.

f. The parent has made a false allegation of abuse or domestic violence to any third party with a duty to report in an attempt to induce them to take their place as a reporter to evade responsibility for said false reporting. The standard of proof of falsity in such an instance shall be that of (3.e) above.

g. The parent moves their residence from the immediate area in which the child and other parent reside, thereby making shared parenting and responsibility impossible, without prior agreement and disposition of the custodial rights and support responsibilities of the parties. A parent who moves from the school district where the children are attending school, or will attend school if they are not current enrolled, and wishes to claim that they have not abandoned their joint responsibilities, bears full responsibility for transportation arrangements to and from school and all additional expenses incurred as a consequence of their move.

h. The parent constructively abandons the child, which is defined as conduct that, without prior agreement of the parties as to the care, custody and support of the child, refuses to provide care, custody and direct support of the child approximately one half (1/2) of the time, irrespective of the physical location of the parent’s respective residences, for a period of time of more than thirty (30) consecutive days or more than sixty (60) days within two years. Such a finding shall not be made if the cause of the claimed abandonment shall be involuntary injury, military service or criminal acts of third parties.

~~(3)~~A parent who is currently absent from the area in which the other parent and child reside, but who is otherwise fit, may re-establish their right to full, shared parenting by giving written notice to the other parent, relocating to the area where the other parent and child reside, declaring residence there and remaining in residence for at least six (6) months. During the pending six month period the residential parent shall be barred from relocation with the child.

(3) For purposes of shared parental responsibility and primary residence, the best interests of the child shall include an evaluation of all factors affecting the welfare and interests of the child, including, but not limited to:

~~(a) The parent who is more likely to allow the child frequent and continuing contact with the nonresidential parent.~~

~~(b) The love, affection, and other emotional ties existing between the parents and the child.~~

(c) The capacity and disposition of the parents to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in lieu of medical care, and other material needs.

~~(d) The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.~~

~~(e) The permanence, as a family unit, of the existing or proposed custodial home.~~

~~(f) The moral fitness of the parents.~~

~~(g) The mental and physical health of the parents.~~

~~(h) The home, school, and community record of the child.~~

~~(i) The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.~~

~~(j) The willingness and ability of each parent to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent.~~

~~(k) Evidence that any party has knowingly provided false information to the court regarding a domestic violence proceeding pursuant to s. 741.30.~~

~~(l) Evidence of domestic violence or child abuse.~~

~~(m) Any other fact considered by the court to be relevant.~~

(4)(a) When a noncustodial parent who is ordered to pay child support or alimony and who is awarded visitation rights fails to pay child support or alimony, the custodial parent shall not refuse to honor the noncustodial parent's visitation rights.

(b) When a custodial parent refuses to honor a noncustodial parent's visitation rights, the noncustodial parent shall not fail to pay any ordered child support or alimony.

(c) When a custodial parent refuses to honor a noncustodial parent's ~~or grandparent's~~ visitation rights without proper cause, the court shall, after calculating the amount of visitation improperly denied, award the noncustodial parent ~~or grandparent~~ a sufficient amount of extra visitation to compensate the noncustodial parent ~~or grandparent~~, which visitation shall be ordered as expeditiously as possible in a manner consistent with the best interests of the child and scheduled in a manner that is convenient for the person deprived of visitation. In ordering any makeup visitation, the court shall schedule such visitation in a manner that is consistent with the best interests of the child or children and that is convenient for the noncustodial parent~~parent or grandparent~~. In addition, the court:

1. Shall~~May~~ order the custodial parent to pay reasonable court costs and attorney's fees incurred by the noncustodial parent ~~or grandparent~~ to enforce their visitation rights or make up improperly denied visitation;

2. May order the custodial parent to attend the parenting course approved by the judicial circuit;

3. May order the custodial parent to do community service if the order will not interfere with the welfare of the child;

4. May order the custodial parent to have the financial burden of promoting frequent and continuing contact when the custodial parent and child reside further than 60 miles from the noncustodial parent;

5. May award custody, rotating custody, or primary residence to the noncustodial parent, upon the request of the noncustodial parent, if the award is in the best interests of the child; or

6. May impose any other reasonable sanction as a result of noncompliance.

(d) A person who violates this subsection may be punished by contempt of court or other remedies as the court deems appropriate.

(5) The court may make specific orders for the care and custody of the minor child as from the circumstances of the parties and the nature of the case is equitable and provide for child support in accordance with the guidelines in s. 61.30. An award of shared parental responsibility of a minor child ~~does not~~ precludes the court from entering an order for child support of the child.

(6) In any proceeding under this section, the court may not deny shared parental responsibility, custody, or visitation rights to a parent ~~or grandparent~~ solely because that parent ~~or grandparent~~ is or is believed to be infected with human immunodeficiency virus; but the court may condition such rights upon the parent's ~~or grandparent's~~ agreement to observe measures approved by the Centers for Disease Control and Prevention of the United States Public Health Service or by the Department of Health for preventing the spread of human immunodeficiency virus to the child.

(7) In any case where the child is actually residing with a grandparent in a stable relationship, ~~whether~~ if the court has awarded custody to the grandparent ~~or not~~, the court may recognize the grandparents as having the same standing as parents for evaluating what custody arrangements are in the best interest of the child.

(8) If the court orders that parental responsibility, including visitation, be shared by both parents, the court may not deny the noncustodial parent overnight contact and access to or visitation with the child solely because of the age or sex of the child.

(9)(a) Beginning July 1, 1997, each party to any paternity or support proceeding is required to file with the tribunal as defined in s. 88.1011(22) and State Case Registry upon entry of an order, and to update as appropriate, information on location and identity of the party, including social security number, residential and mailing addresses, telephone number, driver's license number, and name, address, and telephone number of employer. Beginning October 1, 1998, each party to any paternity or child support proceeding in a non-Title IV-D case shall meet the above requirements for updating the tribunal and State Case Registry.

(b) Pursuant to the federal Personal Responsibility and Work Opportunity Reconciliation Act of 1996, each party is required to provide his or her social security number in accordance with this section. Disclosure of social security numbers obtained through this requirement shall be limited to the purpose of administration of the Title IV-D program for child support enforcement.

(c) Beginning July 1, 1997, in any subsequent Title IV-D child support enforcement action between the parties, upon sufficient showing that diligent effort has been made to ascertain the location of such a party, the court of competent jurisdiction shall deem state due process requirements for notice and service of process to be met with respect to the party, upon delivery of written notice to the most recent residential or employer address filed with the tribunal and State Case Registry pursuant to paragraph (a). Beginning October 1, 1998, in any subsequent non-Title IV-D child support enforcement action between the parties, the same requirements for service shall apply.

(10) At the time an order for child support is entered, each party is required to provide his or her social security number and date of birth to the court, as well as the name, date of birth, and social security number of each minor child that is the subject of such child support order. Pursuant to the federal Personal Responsibility and Work Opportunity Reconciliation Act of 1996, each party is required to provide his or her social security number in accordance with this section. All social security numbers required by this section shall be provided by the parties and maintained by the depository as a separate attachment in the file. Disclosure of social security numbers obtained through this requirement shall be limited to the purpose of administration of the Title IV-D program for child support enforcement.

Section 6: The Legislature finds that the award of attorney’s fees on an interim basis in divorce and custody cases is patently unjust in that it amounts to funding the defense of a case one is prosecuting, regardless of merit. As a consequence Section 61.16(1) is modified as follows:

61.16 Attorney's fees, suit money, and costs.--

(1) The court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney's fees, suit money, and the cost to the other party of maintaining or defending any proceeding under this chapter, including enforcement and modification proceedings and appeals. In those cases in which an action is brought for enforcement and the court finds that the noncompliant party is without justification in the refusal to follow a court order, the court may not award attorney's fees, suit money, and costs to the noncompliant party. An application for attorney's fees, suit money, or costs, whether temporary or otherwise, shall not require corroborating expert testimony in order to support an award under this chapter. The trial court shall have continuing jurisdiction to make temporary attorney's fees and costs awards reasonably necessary to prosecute or defend an appeal on the same basis and criteria as though the matter were pending before it at the trial level. In all cases, the court may order that the amount be paid directly to the attorney, who may enforce the order in that attorney's name. In determining whether to make attorney's fees and costs awards at the appellate level, the court shall primarily consider the relative financial resources of the parties, unless an appellate party's cause is deemed to be frivolous. In Title IV-D cases, attorney's fees, suit money, and costs, including filing fees, recording fees, mediation costs, service of process fees, and other expenses incurred by the clerk of the circuit court, shall be assessed only against the nonprevailing obligor after the court makes a determination of the nonprevailing obligor's ability to pay such costs and fees. The Department of Revenue shall not be considered a party for purposes of this section; however, fees may be assessed against the department pursuant to s. 57.105(1).

Section 7: The Legislature hereby repeals Section 61.20 as unnecessary given the recognition of the fundamental liberty interests embodied in this title.

~~61.20 Social investigation and recommendations when child custody is in issue.~~--

(1) In any action where the custody of a minor child is in issue, the court may order a social investigation and study concerning all pertinent details relating to the child and each parent when such an investigation has not been done and the study therefrom provided to the court by the parties or when the court determines that the investigation and study that have been done are insufficient. The agency, staff, or person conducting the investigation and study ordered by the court pursuant to this section shall furnish the court and all parties of record in the proceeding a written study containing recommendations, including a written statement of facts found in the social investigation on which the recommendations are based. The court may consider the information contained in the study in making a decision on the child's custody and the technical rules of evidence do not exclude the study from consideration.

(2) A social investigation and study, when ordered by the court, shall be conducted by qualified staff of the court; a child-placing agency licensed pursuant to s. 409.175; a psychologist licensed pursuant to chapter 490; or a clinical social worker, marriage and family therapist, or mental health counselor licensed pursuant to chapter 491. If a certification of indigence based on an affidavit filed with the court pursuant to s. 57.081 is provided by an adult party to the proceeding and the court does not have qualified staff to perform the investigation and study, the court may request that the Department of Children and Family Services conduct the investigation and study.

(3) Except as to persons who obtain certification of indigence as specified in subsection (2), for whom no costs shall be incurred, the adult parties involved in a child custody proceeding wherein the court has ordered a social investigation and study performed shall be responsible for the payment of the costs of such investigation and study. Upon submission of the study to the court, the agency, staff, or person performing the study shall include a bill for services, which shall be taxed and ordered paid as costs in the proceeding.

Section 8: The Legislature finds that Section 61.405 presumptively violates the right of the people to recover from those who commit intentional torts against them, and thereby repeals Section 61.405 as contrary to public policy.

~~61.405 Guardians ad litem; immunity.~~--Any person participating in a judicial proceeding as a guardian ad litem shall be presumed prima facie to be acting in good faith and in so doing shall be immune from any liability, civil or criminal, that otherwise might be incurred or imposed.

Section 9: Protection of children from abduction, particularly international abduction – The Legislature modifies Section 61.45 as follows:

61.45 Court order of visitation or custody; risk of violation; bond.--

(1) In a proceeding in which ~~the court enters an order of child custody or visitation~~there is a minor child involved, including in a modification proceeding, upon the presentation of ~~competent substantial~~ evidence that there is a risk that one party may violate the court's order of visitation or custody by removing a child from this state or country or by concealing the whereabouts of a child, or upon stipulation of the parties, the court may:

……

Section 10: Enhancement of Penalties for Parental Kidnapping

The Legislature finds that parental kidnapping or “interference with custody” is an increasing problem in this country and internationally, with over 400,000 incidents annually. Many children taken are never returned to their lawful custodial parents, and most of these abductions take place during divorce and custody battles. Penalties are uneven nationally and often offenders are not even charged. It is clearly in the public interest to dissuade these acts and as a consequence the Legislature hereby strengthens the statute to upgrade the penalty for custodial interference.

Section 787.03 is hereby modified to read as follows:

787.03 Interference with custody.--

(1) Whoever, without lawful authority, knowingly or recklessly takes or entices, or aids, abets, hires, or otherwise procures another to take or entice, any child 17 years of age or under or any incompetent person from the custody of the child or incompetent person's parent, his or her guardian, a public agency having the lawful charge of the child or incompetent person, or any other lawful custodian commits the offense of interference with custody and commits a felony of the ~~third~~ second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. An offense under this section may not be reduced to a misdemeanor by plea agreement.

(2) In the absence of a court order determining rights to custody or visitation with any child 17 years of age or under or with any incompetent person, any parent of the child or incompetent person, whether natural or adoptive, stepparent, legal guardian, or relative of such child or incompetent person who has custody thereof and who takes, detains, conceals, or entices away that child or incompetent person within or without the state, with malicious intent to deprive another person of his or her right to custody of the child or incompetent person, commits a felony of the ~~third~~ second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. An offense under this section may not be reduced to a misdemeanor by plea agreement.

Section 11: Overhauling The Children and Family Services Code

The Legislature finds that the enabling legislation to provide state supervision and assistance to families in crisis and protection of children has failed in its essential mission, often exposing children to more risk than they would have faced even in an abusive home. Children have been lost, assaulted, sexually abused and even murdered while in foster care, often when no criminal act has been or even is proven against their parents or original guardian. In addition, the code has provided for absolute immunity for the Department, its assigns, agents and employees, the result of which has been negligent and intentionally false and fraudulent mismanagement of cases under its control.

It is the determination of this Legislature that the family law code relating to shelter, removal of children and determination of dependency requires modification in order to protect children from abuses at the hands of government that are often worse than the abuses alleged to have been suffered in their homes. Therefore, the following changes are made to Chapter 39 of the Florida Statutes:

39.001 Purposes and intent; personnel standards and screening.--

(1) PURPOSES OF CHAPTER.--The purposes of this chapter are:

(a) To provide for the care, safety, and protection of children in an environment that fosters healthy social, emotional, intellectual, and physical development; to ensure secure and safe custody; and to promote the health and well-being of all children under the state's care.

(b) To recognize that most families desire to be competent caregivers and providers for their children and that children achieve their greatest potential when families are able to support and nurture the growth and development of their children. The Legislature further recognizes that the rearing of one’s children is a fundamental liberty interest protected under both the State and US Federal Constitution, and may not be infringed without proof at criminal standards of harm by that child’s parents. Therefore, the Legislature finds that policies and procedures that provide for intervention through the department's child protection system should be based on the following principles:

1. The health and safety of the children served, and the principle of minimally-invasive intervention consistent with the duties of government oversight where fundamental liberty interests are involved, shall be of paramount concern.

2. The intervention should engage families in constructive, supportive, and nonadversarial relationships.

3. The intervention should intrude as little as possible into the life of the family, be focused on clearly defined objectives, and take the most parsimonious path to remedy a family's problems.

4. The intervention should be based upon outcome evaluation results that demonstrate success in protecting children and supporting families.

(c) To provide a child protection system that reflects a partnership between the department, other agencies, and local communities.

(d) To provide a child protection system that is sensitive to the social and cultural diversity of the state.

(e) To provide procedures which allow the department to respond to reports of child abuse, abandonment, or neglect in the most efficient and effective manner that ensures the health and safety of children and the integrity of families.

(f) To preserve and strengthen the child's family ties whenever possible, removing the child from parental custody only when his or her welfare cannot be adequately safeguarded without such removal consistent with protecting the fundamental liberty interests of both children and parents.

……..

(3) GENERAL PROTECTIONS FOR CHILDREN.--It is a purpose of the Legislature that the children of this state be provided with the following protections:

(a) Protection from abuse, abandonment, neglect, and exploitation.

(b) Recognition and protection of the child’s fundamental liberty interest in the custody, care and control of their parents, and their right to freely associate therewith, provided that their parents have not been found unfit as provided in s. 61.13.3.

(cb) A permanent and stable home.

(dc) A safe and nurturing environment which will preserve a sense of personal dignity and integrity.

(ed) Adequate nutrition, shelter, and clothing.

(fe) Effective treatment to address physical, social, and emotional needs, regardless of geographical location.

(gf) Equal opportunity and access to quality and effective education, which will meet the individual needs of each child, and to recreation and other community resources to develop individual abilities.

(hg) Access to preventive services.

(ih) An independent, trained advocate, when intervention is necessary and a skilled guardian or caregiver in a safe environment when alternative placement is necessary.

39.01(f) – Definitions – is edited to read:

(f) To be at substantial risk of imminent abuse, abandonment, or neglect by the parent or parents or legal custodians, supported by the predicate criminal acts or threatened acts of their parents or legal guardians..

The Legislature finds that the legitimate exercise of religious belief is a fundamental liberty interest that, when co-joined with the fundamental liberty interest inherent in procreation and raising of offspring, prohibits state intervention in parental medical decisions founded on such religious tenets.

39.01.30(f) – Definitions - is thus edited to read:

(f) Neglects the child. Within the context of the definition of "harm," the term "neglects the child" means that the parent or other person responsible for the child's welfare fails to supply the child with adequate food, clothing, shelter, or health care, although financially able to do so or although offered financial or other means to do so. However, a parent or legal custodian who, by reason of the legitimate practice of religious beliefs, does not provide specified medical treatment for a child may not be considered abusive or neglectful for that reason alone, but such an exception does not:

1. Eliminate the requirement that such a case be reported to the department;

2. Prevent the department from investigating such a case.~~; or~~

3. Preclude a court from ordering, when the health of the child requires it, the provision of medical services by a physician, as defined in this section, or treatment by a duly accredited practitioner who relies solely on spiritual means for healing in accordance with the tenets and practices of a well-recognized church or religious organization.

39.01.45 – Definitions – is also edited to read:

(45) "Neglect" occurs when a child is deprived of, or is allowed to be deprived of, necessary food, clothing, shelter, or medical treatment or a child is permitted to live in an environment when such deprivation or environment causes the child's physical, mental, or emotional health to be significantly impaired or to be in danger of being significantly impaired. The foregoing circumstances shall not be considered neglect if caused primarily by financial inability unless actual services for relief have been offered to and rejected by such person. A parent or legal custodian legitimately practicing religious beliefs in accordance with a recognized church or religious organization who thereby does not provide specific medical treatment for a child shall not, for that reason alone, be considered a negligent parent or legal custodian.~~; however, such an exception does not preclude a court from ordering the following services to be provided, when the health of the child so requires:~~

~~(a) Medical services from a licensed physician, dentist, optometrist, podiatric physician, or other qualified health care provider; or~~

~~(b) Treatment by a duly accredited practitioner who relies solely on spiritual means for healing in accordance with the tenets and practices of a well-recognized church or religious organization.~~

Neglect of a child includes acts or omissions.

The Legislature finds that the current exception for public schools in the definition of “Institutional Abuse or Neglect” is unconscionable and thus edits Definitions, 39.01.31 and 39.01.47, as follows:

(31) "Institutional child abuse or neglect" means situations of known or suspected child abuse or neglect in which the person allegedly perpetrating the child abuse or neglect is an employee of a public or private school, public or private day care center, residential home, institution, facility, or agency or any other person at such institution responsible for the child's care.

(47) "Other person responsible for a child's welfare" includes the child's legal guardian, legal custodian, or foster parent; an employee of a public or private school, public or private child day care center, residential home, institution, facility, or agency; or any other person legally responsible for the child's welfare in a residential setting; and also includes an adult sitter or relative entrusted with a child's care. For the purpose of departmental investigative jurisdiction, this definition does not include law enforcement officers, or employees of municipal or county detention facilities or the Department of Corrections, while acting in an official capacity

The Legislature finds that a great number of abuses have occurred as a consequence of the broad immunity granted to members of the Department and its contractors and assigns. As such the Immunity section of Chapter 39 is modified as follows:

39.011 Immunity from liability.--

(1) ~~In no case shall~~ Eemployees or agents of the department or a social service agency ~~acting in good faith~~shall be liable for damages, including punitive damages, as a result of failing to provide services agreed to under the case plan unless the failure to provide such services ~~occurs~~ ~~as a result of bad faith or malicious purpose or occurs in a manner exhibiting wanton and willful disregard of human rights, safety, or property.~~ does not occur as a consequence of negligence, gross negligence, wanton act or willful misconduct by that employee or agent.

(2) The inability or failure of the department or of a social service agency or the employees or agents of the social service agency to provide the services agreed to under the case plan shall ~~not~~ render the state or the social service agency liable for damages. ~~unless such failure to provide services occurs in a manner exhibiting wanton or willful disregard of human rights, safety, or property.~~

(3) A member or agent of a citizen review panel acting in good faith is not liable for damages as a result of any review or recommendation with regard to a dependency matter unless such member or agent exhibits wanton and willful disregard of human rights or safety, or property.

~~(3)~~(4) The Department, its agents and assigns, including but not limited to any Social Service Agency, shall maintain sufficient insurance or bonding that, in aggregate, will permit the payment of claims for acts of omission or commission in performance of its duties.

(5) Notwithstanding any language in s. 768.28 or elsewhere in the Statutes, the limitations on damage claims specified in s. 768.28 shall apply only to bona-fide state agencies, and shall not be extended to any other corporation, person or organization performing work on behalf of the state in connection with The Department under this chapter, nor shall the state indemnify them or extend any umbrella of sovereign immunity over them against claims raised as a consequence of their acts or omissions.

Consistent with the fundamental liberty interests of both parents and children, the Legislature modifies the Jurisdiction of the courts over children adjudicated dependant, 39.013(2), as follows:

(2) The circuit court shall have exclusive original jurisdiction of all proceedings under this chapter, of a child voluntarily placed with a licensed child-caring agency, a licensed child-placing agency, or the department, and of the adoption of children whose parental rights have been terminated pursuant to this chapter. Jurisdiction attaches when the initial shelter petition, dependency petition, or termination of parental rights petition is filed or when a child is taken into the custody of the department. The circuit court may assume jurisdiction over any such proceeding regardless of whether the child was in the physical custody of both parents, was in the sole legal or physical custody of only one parent, caregiver, or some other person, or was in the physical or legal custody of no person when the event or condition occurred that brought the child to the attention of the court. When the court obtains jurisdiction of any child who has been found to be dependent, the court shall ~~retain jurisdiction, unless relinquished by its order, until the child reaches 18 years of age.~~ relinquish jurisdiction as soon as either (1) the child has been returned to his or her parents, and the case plan has been satisfied, (2) the child has reached 18 years of age, or (3) the child has been placed into permanent custody with, or adopted by, another person or family.

The Legislature hereby finds that the Department has an affirmative obligation under the State and Federal Constitution, including the right to face one’s accuser and to have access to all potentially exculpatory evidence, to make all records, including court process and deliberations, available to parents and, upon the passage of a child from minor to adult status, the child to which the process pertained. As such the following changes are made to s. 39.0132:

(3) The clerk shall keep all court records required by this chapter separate from other records of the circuit court. All court records required by this chapter shall not be open to inspection by the public. All records shall be inspected only upon order of the court by persons deemed by the court to have a proper interest therein, except that, subject to the provisions of s. 63.162, a child and the parents of the child and their attorneys, guardian ad litem, law enforcement agencies, and the department and its designees shall always have the right to inspect and copy any official record pertaining to the child. No such record shall be redacted, edited or otherwise tampered with before being provided to the parents, the child or their agents. The court may permit authorized representatives of recognized organizations compiling statistics for proper purposes to inspect and make abstracts from official records, under whatever conditions upon their use and disposition the court may deem proper, and may punish by contempt proceedings any violation of those conditions.

(4)(a) All information obtained pursuant to this part in the discharge of official duty by any judge, employee of the court, authorized agent of the department, correctional probation officer, or law enforcement agent is confidential and exempt from s. 119.07(1) and may not be disclosed to anyone other than the authorized personnel of the court, the department and its designees, correctional probation officers, law enforcement agents, guardian ad litem, and others entitled under this chapter to receive that information, except upon order of the court. The parents and child to whom any such records pertain, or their agents with their written permission, shall have an inalienable right to inspect and copy any information, document or other material, and such material shall not be redacted, edited or otherwise tampered with.

The Legislature finds that the confidentiality provisions in Chapter 39 violate the Constitutional right of the accused to face his or her accuser, and thus modifies 39.201(2) and 39.202 as follows:

(2)(a) Each report of known or suspected child abuse, abandonment, or neglect pursuant to this section, except those solely under s. 827.04(3), shall be made immediately to the department's central abuse hotline on the single statewide toll-free telephone number, and, if the report is of an instance of known or suspected child abuse by a noncaretaker, the call shall be immediately electronically transferred to the appropriate county sheriff's office by the central abuse hotline. If the report is of an instance of known or suspected child abuse involving impregnation of a child under 16 years of age by a person 21 years of age or older solely under s. 827.04(3), the report shall be made immediately to the appropriate county sheriff's office or other appropriate law enforcement agency. If the report is of an instance of known or suspected child abuse solely under s. 827.04(3), the reporting provisions of this subsection do not apply to health care professionals or other persons who provide medical or counseling services to pregnant children when such reporting would interfere with the provision of medical services.

(b) The department must consider valid and accept for investigation any report received by the central abuse hotline from a judge, teacher or other professional school official, or physician, as specified in paragraph (1)(a), paragraph (1)(d), or paragraph (1)(g), who is acting in his or her professional capacity, alleging harm as defined in s. 39.01.

(c) Reporters in occupation categories designated in subsection (1) are required to provide their names to the hotline staff. The names of reporters shall be entered into the record of the report, but shall be held confidential as provided in s. 39.202.

(d) Reports involving known or suspected institutional child abuse or neglect shall be made and received in the same manner as all other reports made pursuant to this section.

(e) Reports involving a known or suspected juvenile sexual offender shall be made and received by the department.

1. The department shall determine the age of the alleged juvenile sexual offender if known.

2. When the alleged juvenile sexual offender is 12 years of age or younger, the department shall proceed with an investigation of the report pursuant to this part, immediately electronically transfer the call to the appropriate law enforcement agency office by the central abuse hotline, and send a written report of the allegation to the appropriate county sheriff's office within 48 hours after the initial report is made to the central abuse hotline.

3. When the alleged juvenile sexual offender is 13 years of age or older, the department shall immediately electronically transfer the call to the appropriate county sheriff's office by the central abuse hotline, and send a written report to the appropriate county sheriff's office within 48 hours after the initial report to the central abuse hotline.

(f) Reports involving abandoned newborn infants as described in s. 383.50 shall be made and received by the department.

1. If the report is of an abandoned newborn infant as described in s. 383.50 and there is no indication of abuse, neglect, or abandonment other than that necessarily entailed in the infant having been left at a hospital, emergency medical services station, or fire station, the department shall provide to the caller the name of a licensed child-placing agency on a rotating basis from a list of licensed child-placing agencies eligible and required to accept physical custody of and to place newborn infants left at a hospital, emergency medical services station, or fire station. The report shall not be considered a report of abuse, neglect, or abandonment solely because the infant has been left at a hospital, emergency medical services station, or fire station pursuant to s. 383.50.

2. If the caller reports indications of abuse or neglect beyond that necessarily entailed in the infant having been left at a hospital, emergency medical services station, or fire station, the report shall be considered as a report of abuse, neglect, or abandonment and shall be subject to the requirements of s. 39.395 and all other relevant provisions of this chapter, notwithstanding any provisions of chapter 383.

(g) Hotline counselors shall receive periodic training in encouraging reporters to provide their names when reporting abuse, abandonment, or neglect. ~~Callers shall be advised of the confidentiality provisions of s. 39.202.~~ The department shall secure and install electronic equipment that automatically provides to the hotline the number from which the call is placed. This number shall be entered into the report of abuse, abandonment, or neglect and become a part of the record of the report~~, but shall enjoy the same confidentiality as provided to the identity of the caller pursuant to s. 39.202~~.

(h) The department shall voice-record all incoming or outgoing calls that are received or placed by the central abuse hotline which relate to suspected or known child abuse, neglect, or abandonment. The recording shall become a part of the record of the report ~~but, notwithstanding s. 39.202,~~ and shall be released in full ~~only~~ to law enforcement agencies and state attorneys for the purpose of investigating and prosecuting criminal charges pursuant to s. 39.205, or to employees of the department for the purpose of investigating and seeking administrative penalties pursuant to s. 39.206. Nothing in this paragraph shall prohibit the use of the recordings by hotline staff for quality assurance and training.

(3) Any person required to report or investigate cases of suspected child abuse, abandonment, or neglect who has reasonable cause to suspect that a child died as a result of child abuse, abandonment, or neglect shall report his or her suspicion to the appropriate medical examiner. The medical examiner shall accept the report for investigation and shall report his or her findings, in writing, to the local law enforcement agency, the appropriate state attorney, and the department. Autopsy reports maintained by the medical examiner are not subject to any~~the~~ confidentiality requirements provided for in s. 39.202.

39.202 Confidentiality of reports and records in cases of child abuse or neglect.--

(1) In order to protect the rights of the child and the child's parents or other persons responsible for the child's welfare, all records held by the department concerning reports of child abandonment, abuse, or neglect, including reports made to the central abuse hotline and all records generated as a result of such reports, shall be confidential and exempt from the provisions of s. 119.07(1) and shall not be disclosed except as specifically authorized by this chapter. Such exemption from s. 119.07(1) applies to information in the possession of those entities granted access as set forth in this section.

(2) Access to such records, ~~excluding~~ including the name of the reporter ~~which shall be released only as provided in subsection (4)~~, shall be granted only to the following persons, officials, and agencies:

(a) Employees, authorized agents, or contract providers of the department, the Department of Health, or county agencies responsible for carrying out:

1. Child or adult protective investigations;

2. Ongoing child or adult protective services;

3. Healthy Start services; or

4. Licensure or approval of adoptive homes, foster homes, or child care facilities, or family day care homes or informal child care providers who receive subsidized child care funding, or other homes used to provide for the care and welfare of children.

Also, employees or agents of the Department of Juvenile Justice responsible for the provision of services to children, pursuant to chapters 984 and 985.

(b) Criminal justice agencies of appropriate jurisdiction.

(c) The state attorney of the judicial circuit in which the child resides or in which the alleged abuse or neglect occurred.

(d) The parent or legal custodian of any child who is alleged to have been abused, abandoned, or neglected, and the child, their assigns and their attorneys. This access shall be made available no later than 30three (3) days after the department receives the initial report of abuse, neglect, or abandonment. ~~However, any information otherwise made confidential or exempt by law shall not be released pursuant to this paragraph.~~

(e) Any person alleged in the report as having caused the abuse, abandonment, or neglect of a child. This access shall be made available no later than three (3) 30 days after the department receives the initial report of abuse, abandonment, or neglect and, when the alleged perpetrator is not a parent, shall be limited to information involving the protective investigation only and shall not include any information relating to subsequent dependency proceedings. ~~However, any information otherwise made confidential or exempt by law shall not be released pursuant to this paragraph.~~

(f) A court upon its finding that access to such records may be necessary for the determination of an issue before the court; however, such access shall be limited to inspection in camera, unless the court determines that public disclosure of the information contained therein is necessary for the resolution of an issue then pending before it.

(g) A grand jury, by subpoena, upon its determination that access to such records is necessary in the conduct of its official business.

(h) Any appropriate official of the department responsible for:

1. Administration or supervision of the department's program for the prevention, investigation, or treatment of child abuse, abandonment, or neglect, or abuse, neglect, or exploitation of a vulnerable adult, when carrying out his or her official function;

2. Taking appropriate administrative action concerning an employee of the department alleged to have perpetrated child abuse, abandonment, or neglect, or abuse, neglect, or exploitation of a vulnerable adult; or

3. Employing and continuing employment of personnel of the department.

(i) Any person authorized by the department who is engaged in the use of such records or information for bona fide research, statistical, or audit purposes. Such individual or entity shall enter into a privacy and security agreement with the department and shall comply with all laws and rules governing the use of such records and information for research and statistical purposes. Information identifying the subjects of such records or information shall be treated as confidential by the researcher and shall not be released in any form. The security agreement shall provide that any person violating the provisions of such an agreement shall be guilty of a felony in the third degree, with each disclosure made under such an agreement constituting a separate and distinct offense, and further shall be civilly liable to any person named or otherwise identified in any such report.

(j) The Division of Administrative Hearings for purposes of any administrative challenge.

(k) Any appropriate official of a Florida advocacy council investigating a report of known or suspected child abuse, abandonment, or neglect; the Auditor General or the Office of Program Policy Analysis and Government Accountability for the purpose of conducting audits or examinations pursuant to law; or the guardian ad litem for the child.

(l) Employees or agents of an agency of another state that has comparable jurisdiction to the jurisdiction described in paragraph (a).

(m) The Public Employees Relations Commission for the sole purpose of obtaining evidence for appeals filed pursuant to s. 447.207. Records may be released only after deletion of all information which specifically identifies persons other than the employee.

(n) Employees or agents of the Department of Revenue responsible for child support enforcement activities.

(o) Any person in the event of the death of a child determined to be a result of abuse, abandonment, or neglect. Information identifying the person reporting abuse, abandonment, or neglect shall not be released. Any information otherwise made confidential or exempt by law shall not be released pursuant to this paragraph.

(3) The department may release to professional persons such information as is necessary for the diagnosis and treatment of the child or the person perpetrating the abuse or neglect.

(4) The name of any person reporting child abuse, abandonment, or neglect may not be released to any person other than employees of the department responsible for child protective services, the central abuse hotline, law enforcement, the child protection team, or the appropriate state attorney, without the written consent of the person reporting. This does not prohibit the subpoenaing of a person reporting child abuse, abandonment, or neglect when deemed necessary by the court, the state attorney, or the department, provided the fact that such person made the report is not disclosed. Any person who reports a case of child abuse or neglect may, at the time he or she makes the report, request that the department notify him or her that a child protective investigation occurred as a result of the report. Any person specifically listed in s. 39.201(1) who makes a report in his or her official capacity may also request a written summary of the outcome of the investigation. The department shall mail such a notice to the reporter within 10 days after completing the child protective investigation.

(5) All records and reports of the child protection team of the Department of Health are confidential and exempt from the provisions of ss. 119.07(1) and 456.057, and shall not be disclosed, except, upon request, to the state attorney, law enforcement, the department, the child, his or her parents, their attorneys and assigns. Disclosure may also be made to~~and~~ necessary professionals, in furtherance of the treatment or additional evaluative needs of the child, by order of the court, or to health plan payors, limited to that information used for insurance reimbursement purposes.

(6) The department shall make and keep reports and records of all cases under this chapter relating to child abuse, abandonment, and neglect and shall preserve the records pertaining to a child and family until 7 years after the last entry was made or until one year after the child is 18 years of age, whichever date is first reached, and may then destroy the records. Department records required by this chapter relating to child abuse, abandonment, and neglect may be inspected only upon order of the court or as provided for in this section.

(7) A person who knowingly or willfully makes public or discloses to any unauthorized person any confidential information contained in the central abuse hotline is subject to the penalty provisions of s. 39.205. This notice shall be prominently displayed on the first sheet of any documents released pursuant to this section.

The Legislature finds that immunity and abrogation of privileged communications is directly contrary to the rights and liberty interests expressed in this legislation, and in the rights of the people generally, and thereby modifies 39.203 as follows and strikes 39.204 in its entirety.

39.203 Immunity from liability in cases of child abuse, abandonment, or neglect.--

(1)(a) Any person, official, or institution participating in good faith in any act authorized or required by this chapter, or reporting in good faith any instance of child abuse, abandonment, or neglect to the department or any law enforcement agency, shall not be immune from any civil or criminal liability which might ~~otherwise~~ result by reason of such action.

(b) Except as provided in this chapter, nothing contained in this section shall be deemed to grant immunity, civil or criminal, to any person suspected of having abused, abandoned, or neglected a child, or committed any illegal act upon or against a child.

(2)(a) No resident or employee of a facility serving children may be subjected to reprisal or discharge because of his or her actions in reporting abuse, abandonment, or neglect pursuant to the requirements of this section.

(b) Any person making a report under this section shall have a civil cause of action for appropriate compensatory and punitive damages against any person who causes detrimental changes in the employment status of such reporting party by reason of his or her making such report. Any detrimental change made in the residency or employment status of such person, including, but not limited to, discharge, termination, demotion, transfer, or reduction in pay or benefits or work privileges, or negative evaluations within a prescribed period of time shall establish a rebuttable presumption that such action was retaliatory.

~~39.204 Abrogation of privileged communications in cases involving child abuse, abandonment, or neglect.~~--The privileged quality of communication between husband and wife and between any professional person and his or her patient or client, and any other privileged communication except that between attorney and client or the privilege provided in s. 90.505, as such communication relates both to the competency of the witness and to the exclusion of confidential communications, shall not apply to any communication involving the perpetrator or alleged perpetrator in any situation involving known or suspected child abuse, abandonment, or neglect and shall not constitute grounds for failure to report as required by s. 39.201 regardless of the source of the information requiring the report, failure to cooperate with law enforcement or the department in its activities pursuant to this chapter, or failure to give evidence in any judicial proceeding relating to child abuse, abandonment, or neglect.

The Legislature finds that in order to protect the people from unreasonable and unwarranted seizures of children, and the deleterious effects thereupon, the following changes to the investigation procedure are made to Chapter 39.301

39.301 Initiation of protective investigations.--

(1) Upon receiving an oral or written report of known or suspected child abuse, abandonment, or neglect, the central abuse hotline shall determine if the report requires an immediate onsite protective investigation. For reports requiring an immediate onsite protective investigation, the central abuse hotline shall immediately notify the department's designated children and families district staff responsible for protective investigations to ensure that an onsite investigation is promptly initiated. For reports not requiring an immediate onsite protective investigation, the central abuse hotline shall notify the department's designated children and families district staff responsible for protective investigations in sufficient time to allow for an investigation. At the time of notification of district staff with respect to the report, the central abuse hotline shall also provide information on any previous report concerning a subject of the present report or any pertinent information relative to the present report or any noted earlier reports.

(2)(a) The department shall immediately forward allegations of criminal conduct to the municipal or county law enforcement agency of the municipality or county in which the alleged conduct has occurred.

(b) As used in this subsection, the term "criminal conduct" means:

1. A child is known or suspected to be the victim of child abuse, as defined in s. 827.03, or of neglect of a child, as defined in s. 827.03.

2. A child is known or suspected to have died as a result of abuse or neglect.

3. A child is known or suspected to be the victim of aggravated child abuse, as defined in s. 827.03.

4. A child is known or suspected to be the victim of sexual battery, as defined in s. 827.071, or of sexual abuse, as defined in s. 39.01.

5. A child is known or suspected to be the victim of institutional child abuse or neglect, as defined in s. 39.01, and as provided for in s. 39.302(1).

(c) Upon receiving a written report of an allegation of criminal conduct from the department, the law enforcement agency shall review the information in the written report to determine whether a criminal investigation is warranted. If the law enforcement agency accepts the case for criminal investigation, it shall coordinate its investigative activities with the department, whenever feasible. If the law enforcement agency does not accept the case for criminal investigation, the agency shall notify the department in writing.

(d) The local law enforcement agreement required in s. 39.306 shall describe the specific local protocols for implementing this section.

(e) As all abusive or neglectful conduct described as requiring intervention by the Department or its assigns in the family and life of a child are criminal acts, as described by the appropriate Florida Statutes, should the law enforcement agency or agencies having jurisdiction over the subject matter either (1) refuse to accept the case for criminal investigation or (2) the case is dropped, dismissed, not prosecuted or a disposition of “not guilty” is entered in any such case, the Department’s investigation shall immediately cease, jurisdiction over the child or children so involved shall be void “instanter”, and any child removed from their parent(s) or guardian(s) shall be immediately returned to the custody, care and control of their parent(s) or guardian(s), notwithstanding any contrary provisions of Chapter 39 or elsewhere in the Florida Statutes. The sole exception to this provision shall be where no parent or guardian is available to assume or resume custody of the child, in which case the Department may proceed in assuming custody of the minor and disposing of the case as prescribed herein. Any intentional or unreasonable delay by any member of the Department, their agents, assigns, contractors or any other person shall constitute kidnapping under s. 787.01 or 787.02, and shall be prosecuted therein, with each person being responsible, in whole or part, for such unreasonable or intentional delay being chargeable with the offense. In addition, upon termination of any such case where the matter is not prosecuted, dismissed, or a finding of “not guilty” is entered, any fees, child support, assets or other items of value, regardless of how denominated, that were confiscated by the Department, paid to the Department, paid to any outside party or agency on order of the court or the Department, or otherwise removed from the child’s estate or that of his or her parents or guardians, shall be immediately returned with interest 6% per annum, compounded monthly, from the date of any such payment, impoundment or confiscation.