How Domestic Violence Affects Child Custody in Florida

Learn more about domestic violence and how it impacts child custody decisions in Florida.

By , Attorney · Harvard Law School
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The strongest risk factor for family violence passing from one generation to the next is witnessing domestic violence between parents. Family law judges understand the impact household violence has on children and are reluctant to place a child in the custody of a parent prone to abusive behavior. Most states have laws that govern how domestic violence affects child custody decisions when parents divorce or separate.

This article will explain domestic violence and how it impacts custody decisions in Florida. If you have additional questions after reading this article, you should consult a local family law attorney for help.

Child Custody in Florida

When Florida family law judges determine how separated or divorced parents share responsibility for their children, they decide two aspects of custody: "legal custody," referring to which parent will make medical, educational, religious and other major decisions for the child, and "physical custody," which refers to the child's living and visitation arrangements with each parent.

Judges can consider many factors when making custody rulings, including the following:

  • each parent's relationship with the child
  • the parents' current division of responsibilities for the child
  • the parents' parenting abilities
  • the child's current living environment
  • the parents' moral fitness (character)
  • the parents' mental and physical health
  • the child's home, school, and community
  • the child's preference
  • the parents' knowledge about the child's friends, teachers, medical care providers, activities, and favorite things
  • each parent's ability to discipline and provide daily schedules for homework, meals, and bedtime
  • each parent's willingness to communicate with the other about the child's activities and other issues
  • parent's issues with drugs or alcohol
  • any evidence of domestic violence, sexual violence, child abuse, child abandonment, or child neglect
  • false information given by either parent about domestic violence, sexual violence, child abuse, child abandonment, or child neglect, and
  • any other factors that affect the child's well-being.

An Overview of Domestic Violence in Florida

In Florida, domestic violence is defined as any assault, battery, sexual abuse, stalking, kidnapping, or any other criminal offense by one household or family member to another that causes injury or death. Even if a couple is not married or no longer lives together, violence between them still qualifies as domestic violence.

What to Do When There Is Domestic Violence

If you are in immediate fear for your safety or have just been a victim of domestic violence, you should call 911. If you've experienced domestic violence or threats of violence in the past and are afraid for your future safety, you should get an "Injunction for Protection Against Domestic Violence" from your county circuit court. The injunction is a court order that directs your abuser to cease all violence and threats against you and stay away from you, or risk going to jail.

To get an injunction, go to the county circuit court clerk's office and ask for a "Petition for an Injunction for Protection." You can go to the clerk's office for the county where you live, where your abuser lives, or the county where the abuse occurred. After you fill out the petition, you will meet with a judge who can give you a temporary injunction that very day.

You and your abuser must both appear at a later hearing, where the judge can extend the injunction for one year. More instructions on how to get an injunction and a sample form you can use can be found here. Contact information for all the Florida circuit court clerks is here.

The Florida Commission Against Domestic Violence has a 24-hour hotline if you want to speak with someone about domestic violence in your household. There is also a National Domestic Violence Hotline you may call. Find other information and resources about domestic violence at Florida's Office of Domestic Violence.

Impact of Domestic Violence on Custody Decisions

Florida judges begin custody decisions with the presumption that both parents should share custody, unless it would be detrimental to the child. If a parent has been convicted of a misdemeanor domestic violence charge or worse, the courts presume that it would be detrimental to the child to give that parent custody. The convicted parent has the burden of proving to the court that he or she should share custody and visitation with the other parent.

Even if there is no conviction, the judge will still consider any evidence of domestic violence or child abuse presented to the court. At the beginning of every custody case, parents must tell the judge about any domestic violence, injunctions, or termination of parental rights (explained below) with other children.

Florida courts will also presume that a parent who has been convicted in any state of sexual abuse or battery, lewd behavior, kidnapping, incest, indecent exposure, or physical abuse of children should not have custody or visitation with a child. Be aware that it is not kidnapping to take your child away from the other parent to prevent domestic violence.

In custody cases with a convicted parent, the court will hold a hearing to decide whether that parent and the child should have any contact.. Before the court will allow any visitation between a child and convicted parent, the judge must be convinced that the child's safety, well-being, and physical, mental and emotional health is not in danger.

If the judge decides that it is in the best interests of a child to have contact with a parent who has committed domestic violence, the judge will make visitation arrangements to protect the child or abused parent from further harm.

Supervised Visitation

To protect both the child and the other parent, a judge may order that a trained supervisor oversee all visitation between a child and abusive parent. Florida courts work with pre-approved supervised visitation programs that specifically handle visits between parents and children. The judge can also order that the abusive parent pay for all costs of the supervised visitation.

Termination of Parental Rights

In rare and extreme cases, a judge may decide that it is in the child's best interest to end the parent-child relationship; this is called "termination of parental rights." Judges may terminate parental rights when a parent:

  • is a violent career criminal
  • is a sexual predator
  • has sexually abused or committed aggravated child abuse against the child
  • has been convicted of first or second degree murder
  • conspired with someone or hired someone to murder the other parent or another child, or
  • committed a sexual battery that is a first-degree felony (the most serious type of felony in Florida).

The court will also consider the child's age, the child's relationship with the parent, and any other factor the court deems relevant before terminating parental rights.

If you have other questions about domestic violence and child custody in Florida, contact a local family law attorney for advice.

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