Florida Senate - 2010                       CS for CS for SB 334
       
       
       
       By the Committees on Criminal and Civil Justice Appropriations;
       and Judiciary; and Senators Storms and Baker
       
       
       
       604-04272-10                                           2010334c2
    1                        A bill to be entitled                      
    2         An act relating to temporary and concurrent custody of
    3         a child; revising ch. 751, F.S., relating to petitions
    4         and court orders awarding the temporary custody of a
    5         child to an extended family member, to also provide
    6         for concurrent custody with the parents of the child;
    7         amending ss. 751.01 and 751.02, F.S.; conforming
    8         provisions to changes made by the act; amending s.
    9         751.011, F.S.; revising definitions; defining the term
   10         “concurrent custody”; amending s. 751.03, F.S.;
   11         revising the petition for concurrent custody to
   12         require additional information; amending s. 751.05,
   13         F.S.; providing that if a parent objects to a petition
   14         for concurrent custody, the court may not grant the
   15         petition and must give the petitioner the option of
   16         converting the petition to one for temporary custody;
   17         providing for dismissal of the petition; providing
   18         that an order granting concurrent custody does not
   19         affect the ability of the parents to obtain the
   20         physical custody of the child at any time; providing
   21         for the court to terminate an order for concurrent
   22         custody if either or both parents object to the order;
   23         providing for filing for temporary custody if an order
   24         for concurrent custody has been terminated; providing
   25         for the court to modify an existing child support
   26         order; amending s. 61.13002, F.S.; authorizing a
   27         servicemember parent ordered to active duty to
   28         designate another to exercise that parent’s time
   29         sharing responsibility for the child; providing for
   30         expedited hearings and alternative means for the
   31         servicemember parent to testify; providing an
   32         effective date.
   33  
   34  Be It Enacted by the Legislature of the State of Florida:
   35  
   36         Section 1. Subsection (3) of section 751.01, Florida
   37  Statutes, is amended to read:
   38         751.01 Purpose of act.—The purposes of ss. 751.01-751.05
   39  are to:
   40         (3) Provide temporary or concurrent custody of a minor
   41  child to a family member having physical custody of the minor
   42  child to enable the custodian to:
   43         (a) Consent to all necessary and reasonable medical and
   44  dental care for the child, including nonemergency surgery and
   45  psychiatric care.;
   46         (b) Secure copies of the child’s records, held by third
   47  parties, which that are necessary for to the care of the child,
   48  including, but not limited to:
   49         1. Medical, dental, and psychiatric records;
   50         2. Birth certificates and other records; and
   51         3. Educational records;
   52         (c) Enroll the child in school and grant or withhold
   53  consent for a child to be tested or placed in special school
   54  programs, including exceptional education.; and
   55         (d) Do all other things necessary for the care of the
   56  child.
   57         Section 2. Section 751.011, Florida Statutes, is amended to
   58  read:
   59         751.011 Definitions.—As used in this chapter ss. 751.01
   60  751.05, the term:
   61         (1)“Concurrent custody” means that an eligible extended
   62  family member is awarded custodial rights to care for a child
   63  concurrently with the child’s parent or parents.
   64         (2) “Extended family member” means a is any person who is:
   65         (a)(1) A relative of a minor child within the third degree
   66  by blood or marriage to the parent; or
   67         (b)(2) The stepparent of a minor child if the stepparent is
   68  currently married to the parent of the child and is not a party
   69  in a pending dissolution, separate maintenance, domestic
   70  violence, or other civil or criminal proceeding in any court of
   71  competent jurisdiction involving one or both of the child’s
   72  parents as an adverse party.
   73         Section 3. Section 751.02, Florida Statutes, is amended to
   74  read:
   75         751.02 Determination of Temporary or concurrent custody
   76  proceedings; jurisdiction.—
   77         (1) The following individuals may bring proceedings in the
   78  circuit court to determine the temporary or concurrent custody
   79  of a minor child:
   80         (a)(1) Any extended family member who has the signed,
   81  notarized consent of the child’s legal parents; or
   82         (b)(2) Any extended family member who is caring full time
   83  for the child in the role of a substitute parent and with whom
   84  the child is presently living.
   85         (2)In addition to the requirements of subsection (1), an
   86  individual seeking concurrent custody must:
   87         (a)Currently have physical custody of the child, and have
   88  had physical custody of the child for at least 10 days in any
   89  30-day period within the last 12 months; and
   90         (b)Not have signed, written documentation from a parent
   91  which is sufficient to enable the custodian to do all of the
   92  things necessary to care for the child which are available to
   93  custodians who have an order issued under s. 751.05.
   94         Section 4. Section 751.03, Florida Statutes, is amended to
   95  read:
   96         751.03 Petition for temporary or concurrent custody;
   97  contents.—Each petition for temporary or concurrent custody of a
   98  minor child must be verified by the petitioner, who must be an
   99  extended family member, and must contain statements, to the best
  100  of the petitioner’s knowledge and belief, providing showing:
  101         (1) The name, date of birth, and current address of the
  102  child.;
  103         (2) The names and current addresses of the child’s
  104  parents.;
  105         (3) The names and current addresses of the persons with
  106  whom the child has lived during the past 5 years.;
  107         (4) The places where the child has lived during the past 5
  108  years.;
  109         (5) Information concerning any custody proceeding in this
  110  or any other state with respect to the child.;
  111         (6) The residence and post office address of the
  112  petitioner.;
  113         (7) The petitioner’s relationship to the child.;
  114         (8)If concurrent custody is being requested:
  115         (a)The time periods during the last 12 months in which the
  116  child resided with the petitioner;
  117         (b)The type of document, if any, provided by the parent or
  118  parents to enable the petitioner to act on behalf of the child;
  119         (c)The services or actions that the petitioner is unable
  120  to obtain or undertake without an order of custody; and
  121         (d)Whether each parent has consented, in writing, to the
  122  entry of an order of concurrent custody.
  123  
  124  A copy of the written consent and any documents provided by the
  125  parent to assist the petitioner in obtaining services must be
  126  attached to the petition.
  127         (9)(8)If temporary custody is being requested, the consent
  128  of the child’s parents, or the specific acts or omissions of the
  129  parents which demonstrate that the parents have abused,
  130  abandoned, or neglected the child as defined in chapter 39.;
  131         (10)(9) Any temporary or permanent orders for child
  132  support, the court entering the order, and the case number.;
  133         (11)(10) Any temporary or permanent order for protection
  134  entered on behalf of or against either parent, the petitioner,
  135  or the child; the court entering the order; and the case
  136  number.;
  137         (12)(11) That it is in the best interest of the child for
  138  the petitioner to have custody of the child.; and
  139         (13)(12) A statement of the period of time the petitioner
  140  is requesting temporary custody, including a statement of the
  141  reasons supporting that request.
  142  
  143  Only an extended family member may file a petition under this
  144  chapter.
  145         Section 5. Section 751.05, Florida Statutes, is amended to
  146  read:
  147         751.05 Order granting temporary or concurrent custody.—
  148         (1) At the hearing on the petition for temporary or
  149  concurrent custody, the court must hear the evidence concerning
  150  a minor child’s need for care by the petitioner, all other
  151  matters required to be set forth in the petition, and the
  152  objections or other testimony of the child’s parents, if
  153  present.
  154         (2) Unless the minor child’s parents object, the court
  155  shall award the temporary or concurrent custody of the child to
  156  the petitioner if when it is in the best interest of the child
  157  to do so.
  158         (3) If one of the minor child’s parents objects to:
  159         (a)The petition for concurrent custody, in writing, the
  160  court may not grant the petition even if the other parent
  161  consents, in writing, to the entry of the order. The court shall
  162  give the petitioner the option of converting the petition to a
  163  petition for temporary custody. If the petitioner so elects, the
  164  court shall set the matter for further hearing, provide notice
  165  to the parent or parents, and proceed in accordance with
  166  paragraph (b). If the petition is not converted into a petition
  167  for temporary custody, it shall be dismissed without prejudice.
  168         (b) The petition for temporary custody granting of
  169  temporary custody to the petitioner, the court shall grant the
  170  petition only upon a finding, by clear and convincing evidence,
  171  that the child’s parent or parents are unfit to provide for the
  172  care and control of the child. In determining that a parent is
  173  unfit, the court must find that the parent has abused,
  174  abandoned, or neglected the child, as defined in chapter 39.
  175         (4) The order granting:
  176         (a)Concurrent custody of the minor child may not eliminate
  177  or diminish the custodial rights of the child’s parent or
  178  parents. The order must expressly state that the grant of
  179  custody does not affect the ability of the child’s parent or
  180  parents to obtain physical custody of the child at any time.
  181         (b) Temporary custody of the minor child to the petitioner
  182  may also grant visitation rights to the child’s parent or
  183  parents, if it is in the best interest of the child to do so.
  184         (5)(a) The order granting temporary or concurrent custody
  185  of the minor child to the petitioner:
  186         (a) May not include an order for the support of the child
  187  unless the parent has received personal or substituted service
  188  of process, the petition requests an order for the support of
  189  the child, and there is evidence of the parent’s ability to pay
  190  the support ordered.
  191         (b) The order granting temporary custody May redirect all
  192  or part of an existing child support obligation to be paid to
  193  the extended family member who is granted temporary or
  194  concurrent custody of the child. If the court redirects an
  195  existing child support obligation, the order granting temporary
  196  or concurrent custody must include, if possible, the
  197  determination of arrearages owed to the obligee and the person
  198  awarded temporary or concurrent custody and must order payment
  199  of the arrearages. The clerk of the circuit court in which the
  200  temporary custody order is entered shall transmit a certified
  201  copy thereof to the court originally entering the child support
  202  order. The temporary or concurrent custody order shall be
  203  recorded and filed in the original action in which child support
  204  was determined and become a part thereof. A copy of the
  205  temporary or concurrent custody order shall also be filed with
  206  the depository that serves as the official recordkeeper for
  207  support payments due under the support order. The depository
  208  must shall maintain separate accounts and separate account
  209  numbers for individual obligees.
  210         (6) At any time, either or both of the child’s parents may
  211  petition the court to modify or terminate the order granting
  212  temporary custody. The court shall terminate the order upon a
  213  finding that the parent is a fit parent, or by consent of the
  214  parties. The court may modify an order granting temporary
  215  custody if the parties consent or if modification is in the best
  216  interest of the child.
  217         (7)At any time the petitioner, or either or both of the
  218  child’s parents, may move the court to terminate the order
  219  granting concurrent custody. The court shall terminate the order
  220  upon a finding that either or both of the child’s parents object
  221  to the order. The fact that an order for concurrent custody has
  222  been terminated does not preclude any person who is otherwise
  223  eligible to petition for temporary custody from filing such
  224  petition.
  225         (8)At any time the petitioner, or either or both of the
  226  child’s parents, may move the court to modify the existing child
  227  support order pursuant to chapter 61. The court may modify an
  228  existing order granting child support if the parties consent and
  229  if modification is in the best interest of the child. Any order
  230  modifying child support in a concurrent custody proceeding shall
  231  be copied and placed in the related family court files.
  232         Section 6. Section 61.13002, Florida Statutes, is amended
  233  to read:
  234         61.13002 Temporary time-sharing modification and child
  235  support modification due to military service.—
  236         (1) If a supplemental petition or a motion for modification
  237  of time-sharing and parental responsibility is filed because a
  238  parent is activated, deployed, or temporarily assigned to
  239  military service and the parent’s ability to comply with time
  240  sharing is materially affected as a result, the court may not
  241  issue an order or modify or amend a previous judgment or order
  242  that changes time-sharing as it existed on the date the parent
  243  was activated, deployed, or temporarily assigned to military
  244  service, except that a court may enter a temporary order to
  245  modify or amend time-sharing if there is clear and convincing
  246  evidence that a the temporary modification or amendment is in
  247  the best interests of the child. When entering a temporary order
  248  under this section, the court shall consider and provide for, if
  249  feasible, provide for contact between the military servicemember
  250  and his or her child, including, but not limited to, electronic
  251  communication by webcam, telephone, or other available means.
  252  The court shall also permit liberal time-sharing during periods
  253  of leave from military service, as it is in the child’s best
  254  interests to maintain the parent-child bond during the parent’s
  255  military service.
  256         (2) If a parent is activated, deployed, or temporarily
  257  assigned to military service on orders in excess of 90 days and
  258  that parent’s ability to comply with time-sharing is materially
  259  affected as a result, that parent may designate other persons to
  260  exercise the parent’s time-sharing possession of the child on
  261  the parent’s behalf. Such designation is limited to a family
  262  member, or stepparent or other relative by marriage, of the
  263  child. The designation must be in writing and provided to the
  264  other parent at least 10 working days before the court-ordered
  265  period of time-sharing commences. The other parent may object
  266  only on the grounds that the designee’s time-sharing visitation
  267  is not in the best interests of the child. If unable to reach
  268  agreement on the delegation, either parent may request an
  269  expedited court hearing for a determination on the designation.
  270         (3) The servicemember and the other parent shall cooperate
  271  with each other in an effort to reach a mutually agreeable
  272  resolution of custody, visitation, delegation of visitation, and
  273  child support. Each parent shall provide information to the
  274  other parent in order to facilitate agreement on custody,
  275  visitation, delegation of visitation, and child support.
  276  Agreements on the designation of persons to exercise time
  277  sharing possession of the child on the servicemember’s behalf
  278  may also be made at the time of dissolution of marriage or other
  279  child custody proceedings.
  280         (4) Upon motion of either parent for enforcement of rights
  281  under this section, the court shall, for good cause shown, hold
  282  an expedited hearing in custody and visitation matters
  283  instituted under this section, and permit the servicemember to
  284  testify by telephone, video teleconference, webcam, affidavit,
  285  or other means if the military duties of the servicemember have
  286  a material effect on that parent’s ability, or anticipated
  287  ability, to appear in person at a regularly scheduled hearing.
  288         (5)(2) If a temporary order is issued under this section,
  289  the court shall reinstate the time-sharing order previously in
  290  effect upon the servicemember parent’s return from active
  291  military service, deployment, or temporary assignment.
  292         (6)(3) If a temporary order is entered under this section,
  293  the court may address the issue of support for the child by:
  294         (a) Entering an order of temporary support from the
  295  servicemember to the other parent under s. 61.30;
  296         (b) Requiring the servicemember to enroll the child as a
  297  military dependent with DEERs, TriCare, or other similar
  298  benefits available to military dependents as provided by the
  299  service member’s branch of service and federal regulations; or
  300         (c) Suspending, abating, or reducing the child support
  301  obligation of the other parent nonservice member until the
  302  custody judgment or time-share order previously in effect is
  303  reinstated.
  304         (4) This section does not apply to permanent change of
  305  station moves by military personnel, which is shall be governed
  306  by s. 61.13001.
  307         Section 7. This act shall take effect January 1, 2011.