| 1 | A bill to be entitled |
| 2 | An act relating to de facto custody of a child; requesting |
| 3 | that the Division of Statutory Revision revise the title |
| 4 | of ch. 751, F.S.; amending s. 751.011, F.S.; providing |
| 5 | definitions relating to de facto custodians; creating s. |
| 6 | 751.10, F.S.; specifying circumstances under which a |
| 7 | person may file a petition to become the de facto |
| 8 | custodian of a child; detailing the matters that must be |
| 9 | in the petition filed by the petitioner; requiring that |
| 10 | reasonable notice of the custody hearing be given to |
| 11 | specified persons; providing for a hearing; requiring that |
| 12 | if an objection to the petition is filed, the court may |
| 13 | grant the petition only if the petitioner shows by clear |
| 14 | and convincing evidence that it is in the best interest of |
| 15 | the child for the petitioner to be the de facto custodian; |
| 16 | providing that support for the child may be ordered only |
| 17 | under certain circumstances; providing for the termination |
| 18 | of the order granting de facto custody; providing an |
| 19 | effective date. |
| 20 |
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| 21 | Be It Enacted by the Legislature of the State of Florida: |
| 22 |
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| 23 | Section 1. The Division of Statutory Revision is requested |
| 24 | to change the title of chapter 751, Florida Statutes, to |
| 25 | "CUSTODY OF MINOR CHILDREN BY EXTENDED FAMILY AND DE FACTO |
| 26 | CUSTODIANS." |
| 27 | Section 2. Section 751.011, Florida Statutes, is amended |
| 28 | to read: |
| 29 | 751.011 Definitions.--As used in this chapter ss. 751.01- |
| 30 | 751.01-751.05, the term: |
| 31 | (1) "De facto custodian" means an individual who has been |
| 32 | the primary caregiver for a child who has, within the 24 months |
| 33 | immediately preceding the filing of the petition, resided with |
| 34 | the individual without a parent present and with a lack of |
| 35 | demonstrated consistent participation by a parent for a period |
| 36 | of: |
| 37 | (a) Six months or more, which need not be consecutive, if |
| 38 | the child is younger than 3 years of age; or |
| 39 | (b) One year or more, which need not be consecutive, if |
| 40 | the child is 3 years of age or older. |
| 41 |
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| 42 | A de facto custodian does not include a person who has a child |
| 43 | placed in his or her care through a custody consent decree, a |
| 44 | court order, or a voluntary placement or for adoption under |
| 45 | chapter 61. |
| 46 | (2)(1) "Extended family" means is any family composed of |
| 47 | the minor child and a relative of the child who is the child's |
| 48 | brother, sister, grandparent, aunt, uncle, or cousin. |
| 49 | (3) "Lack of demonstrated consistent participation by a |
| 50 | parent" means a refusal or neglect to comply with the duties |
| 51 | imposed upon the parent by the parent-child relationship, |
| 52 | including, but not limited to, providing the child with |
| 53 | necessary food, clothing, shelter, health care, and education; |
| 54 | creating a nurturing and consistent relationship; and providing |
| 55 | other care and control necessary for the child's physical, |
| 56 | mental, or emotional health and development. |
| 57 | (4) "Other person responsible for a child's welfare" has |
| 58 | the same meaning as in s. 39.01(47). |
| 59 | (5) "Parent" has the same meaning as in s. 39.01(49). |
| 60 | (6)(2) "Putative father" means is a man who reasonably |
| 61 | believes himself to be the biological father of the minor child, |
| 62 | but who is unable to prove his paternity due to the absence of |
| 63 | the mother of the child. |
| 64 | (7) "Relative" has the same meaning as in s. 39.01(60). |
| 65 | Section 3. Section 751.10, Florida Statutes, is created to |
| 66 | read: |
| 67 | 751.10 De facto custodians.-- |
| 68 | (1) DETERMINATION OF DE FACTO CUSTODY.--Any person who has |
| 69 | the signed, notarized consent of the child's legal parents, or |
| 70 | any person with whom a child is presently living, may bring |
| 71 | proceedings in the circuit court to determine the de facto |
| 72 | custody of the child. The proceeding may be filed in the county |
| 73 | where the child permanently resides, where the child is found, |
| 74 | or where an earlier order of custody was entered. |
| 75 | (2) PETITION FOR DE FACTO CUSTODY; CONTENTS.--Each |
| 76 | petition for de facto custody of a minor child must be verified |
| 77 | by the petitioner and must contain statements, to the best of |
| 78 | petitioner's knowledge and belief, showing: |
| 79 | (a) The name, date of birth, and current address of the |
| 80 | child. |
| 81 | (b) The names and current addresses of the child's |
| 82 | parents. |
| 83 | (c) The length of time the child has lived with the |
| 84 | petitioner. |
| 85 | (d) The names and current addresses of the persons with |
| 86 | whom the child has lived during the past 5 years. |
| 87 | (e) The places where the child has lived during the past 5 |
| 88 | years. |
| 89 | (f) The current legal custodial status of the child and a |
| 90 | listing of all prior orders of custody, if known to the |
| 91 | petitioner. |
| 92 | (g) Information concerning any pending custody proceeding |
| 93 | in this or any other state with respect to the child. |
| 94 | (h) The residence and post office address of the |
| 95 | petitioner. |
| 96 | (i) The petitioner's relationship to the child and the |
| 97 | extent to which the child has been cared for, nurtured, and |
| 98 | supported by the petitioner. |
| 99 | (j) The consent of the child's parents, if any, or the |
| 100 | circumstances of the child's current living situation with the |
| 101 | petitioner. |
| 102 | (k) Any temporary or permanent child support, attorney's |
| 103 | fees, costs, and disbursements. |
| 104 | (l) Whether an order of protection governing the parties |
| 105 | or a party and a minor child of the parties or party is in |
| 106 | effect and, if so, the court or similar jurisdiction in which |
| 107 | the order was entered. |
| 108 | (m) That it is in the best interest of the child for the |
| 109 | petitioner to have de facto custody of the child. |
| 110 | (3) NOTICE AND OPPORTUNITY TO BE HEARD.--Before a decree |
| 111 | is made under this section, reasonable notice and an opportunity |
| 112 | to be heard must be given to the parents of the minor child, |
| 113 | relatives of the child, other persons responsible for a child's |
| 114 | welfare, and the child's tribe if the child is an Indian child. |
| 115 | Notice must be given by service of process, either personal or |
| 116 | constructive. |
| 117 | (4) ORDER GRANTING DE FACTO CUSTODY.-- |
| 118 | (a) At the hearing on the petition for de facto custody, |
| 119 | the court must hear the evidence concerning the minor child's |
| 120 | need for care by the petitioner acting as the de facto |
| 121 | custodian, all other matters required to be set forth in the |
| 122 | petition, and the objections or other testimony of the child's |
| 123 | parents, relatives, or other persons responsible for the child's |
| 124 | welfare, if present. |
| 125 | (b) Unless the child's parents, relatives, or other |
| 126 | persons responsible for the child's welfare object, the court |
| 127 | shall award the de facto custody of the child to the petitioner |
| 128 | if it is in the best interest of the child to do so. |
| 129 | (c) If one of the minor child's parents, relatives, or |
| 130 | other persons responsible for a child's welfare objects to the |
| 131 | granting of de facto custody to the petitioner, the court shall |
| 132 | grant the petition only upon a finding, by clear and convincing |
| 133 | evidence, that the petitioner has satisfied all matters required |
| 134 | to be set forth in the petition and that the child's parent or |
| 135 | parents, or others, have exhibited a lack of demonstrated |
| 136 | consistent participation in the care of the child. In |
| 137 | determining that a parent or another lacks consistent |
| 138 | participation as a parent, the court must find that the parent |
| 139 | or another has abused, abandoned, or neglected the child, as |
| 140 | defined in chapter 39. The court must make detailed findings and |
| 141 | explain how the facts have led to its conclusions and to the |
| 142 | determination of the best interest of the child. |
| 143 | (d) The order granting de facto custody of the minor child |
| 144 | to the petitioner may also grant visitation rights to the |
| 145 | child's parent or parents if it is in the best interest of the |
| 146 | child to do so. |
| 147 | (e) The order granting de facto custody of the minor child |
| 148 | to the petitioner may not include an order for the support of |
| 149 | the child unless the parent has received personal or substituted |
| 150 | service of process, the petition requests an order for the |
| 151 | support of the child, and there is evidence of the parent's |
| 152 | ability to pay the support ordered. |
| 153 | (f) If the court grants custody to the de facto custodian, |
| 154 | the de facto custodian has legal custody of the child under the |
| 155 | laws of this state. |
| 156 | (5) TERMINATION OF THE ORDER.--At any time, either or both |
| 157 | of the child's parents may petition the court to modify or |
| 158 | terminate the order granting de facto custody upon a finding |
| 159 | that the parent requesting the termination of the order is a fit |
| 160 | parent or by consent of the parties. |
| 161 | Section 4. This act shall take effect on July 1, 2005. |