As of July 1, 2023, the passage of SB 130 also known as “Greyson’s Law” created in new statutory language and 61.13(2) that expands upon what the court shall consider when determining whether shared or sole responsibility would be detrimental to a minor child. The bill also expanded the 13th factor to include letter “m,” evidence that a parent has or has had reasonable cause to believe that he or she or his or her minor child are an imminent danger of becoming victims of domestic violence.
Under Florida statute 61.13(2)(c)2. the court shall order that the parental responsibility for a minor child be shared by both parents unless the court finds that shared parent responsibility would be detrimental to the child.
- Evidence of domestic violence as defined by Florida statute 741.28
741.28: “Domestic violence” means any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.
- Whether either parent has or has had a reasonable cause to believe that he or she or his or her minor child or children are or have been in imminent danger of becoming victims of an active domestic violence as defined by 741.28 or sexual violence as defined by 784.046(1)(c) by the other parent against the parent or against the child or children, whom the parent share in common, regardless of whether cause of action has been brought or is currently pending in the court
784.046: (c) “Sexual violence” means any one incident of:
1. Sexual battery, as defined in chapter 794;
2. A lewd or lascivious act, as defined in chapter 800, committed upon or in the presence of a person younger than 16 years of age;
3. Luring or enticing a child, as described in chapter 787;
4. Sexual performance by a child, as described in chapter 827; or
5. Any other forcible felony wherein a sexual act is committed or attempted,
regardless of whether criminal charges based on the incident were filed, reduced, or dismissed by the state attorney.
- Whether either parent has or has had caused to believe that his or her minor child or children are or have been in imminent danger of becoming victims of an act of abuse as defined by Florida statute 39.01(2) abandon as defined by 39.01(1), or neglect as defined by 39.01 (50) by the other parent against the child or children, whom the parent Sharon common, regardless of whether a cause of action has been brought or is currently pending in the court
39.01(2): “Abuse” means any willful act or threatened act that results in any physical, mental, or sexual abuse, injury, or harm that causes or is likely to cause the child’s physical, mental, or emotional health to be significantly impaired. Abuse of a child includes the birth of a new child into a family during the course of an open dependency case when the parent or caregiver has been determined to lack the protective capacity to safely care for the children in the home and has not substantially complied with the case plan towards successful reunification or met the conditions for return of the children into the home. Abuse of a child includes acts or omissions. Corporal discipline of a child by a parent or legal custodian for disciplinary purposes does not in itself constitute abuse when it does not result in harm to the child.
39.01(1): “Abandoned” or “abandonment” means a situation in which the parent or legal custodian of a child or, in the absence of a parent or legal custodian, the caregiver, while being able, has made no significant contribution to the child’s care and maintenance or has failed to establish or maintain a substantial and positive relationship with the child, or both. For purposes of this subsection, “establish or maintain a substantial and positive relationship” includes, but is not limited to, frequent and regular contact with the child through frequent and regular visitation or frequent and regular communication to or with the child, and the exercise of parental rights and responsibilities. Marginal efforts and incidental or token visits or communications are not sufficient to establish or maintain a substantial and positive relationship with a child. A man’s acknowledgment of paternity of the child does not limit the period of time considered in determining whether the child was abandoned. The term does not include a surrendered newborn infant as described in s. 383.50, a “child in need of services” as defined in chapter 984, or a “family in need of services” as defined in chapter 984. The absence of a parent, legal custodian, or caregiver responsible for a child’s welfare, who is a servicemember, by reason of deployment or anticipated deployment as defined in 50 U.S.C. s. 3938(e), may not be considered or used as a factor in determining abandonment. The incarceration, repeated incarceration, or extended incarceration of a parent, legal custodian, or caregiver responsible for a child’s welfare may support a finding of abandonment.
39.01(50) “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 may 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.
- Any other relevant factors
The issues of reasonableness and imminence go hand in hand. While “Greyson’s Law” is a new addition, Florida Courts have been dealing with similar language when it comes to granting domestic violence injunctions and in criminal assault cases. A domestic violence injunction (more commonly referred to as a “restraining order”) requires a party to show that an act of domestic violence occurred or that a party has a reasonable fear that an act of domestic violence is imminent.
The danger feared be imminent but the rationale for the fear must be objectively reasonable as well. Gustafson v. Mauck, 743 So. 2d 614, 615 (Fla. 1st DCA 1999).
What does “reasonable fear” mean?
A subjective standard would be met where a victim is in fear based on their own knowledge and experience. While a person’s fear may be reasonable based on their experiences, the mere fact that a victim is in fear is not the standard that courts must follow.
The statutory standard is an objective one. Gustafson v. Mauck, 743 So. 2d 614, 615 (Fla. 1st DCA 1999). An objective fear is one in which “a reasonable person would experience a well-founded fear of imminent harm.” Tash v. Rogers, 246 So. 3d 1304, 1305 (Fla. 1st DCA 2018).
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What does “imminent” mean?
Merriam-Webster defines “imminent” as “ready to take place: happening soon.” Imminent, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/imminent (last visited Sept. 14, 2022). This definition implies that an “imminent” act requires no further measures to manifest; imminence also has a temporal dimension, developing quickly relative to the events that define it. In other words, very little time or preparation may stand between the present moment and an “imminent” event. State v. Woodson, 2021 Fla. Cir. LEXIS 13800 (Fla. 5th DCA 2021).
The First and Fourth Districts defined an “imminent” risk of child abuse under section 39.01, Florida Statutes, as a danger “about to occur” within a “narrow[ ] time frame.” State v. Woodson, 2021 Fla. Cir. LEXIS 13800 (Fla. 5th DCA 2021) citing E.H. v. Dep’t of Child. & Fams., 147 So. 3d 616, 620 (Fla. 4th DCA 2014); E.M.A. v. Dep’t of Child. & Fams., 795 So. 2d 183, 186 n.3 (Fla. 1st DCA 2001).
The E.M.A. court makes a relevant distinction between similar language in order to explain the term “imminent.” “‘[P]rospective’ simply means likely to happen,[] or ‘expected.’ ‘Imminent’ encompasses a narrower time frame and means ‘impending’ and ‘about to occur.’ Thus, while all imminent abuse or neglect is prospective, prospective abuse or neglect is merely in the future, but not necessarily about to happen.” 795 So. 2d at 186.
[A]n isolated incident of domestic violence that occurred years before a petition for injunction is filed will not usually support the issuance of an injunction in the absence of additional current allegations.”); Jones v. State, 32 So. 3d 772, 774 (Fla. 2d DCA 2010) (holding that an incident where a former husband arrived at his ex-wife’s place of work was not sufficient to show a reasonable fear of domestic violence because the “circumstances did not involve any violence or any threat of violence”).
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