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F.S. §39.0139: Protecting Children from Sexual Abuse by Those Entrusted with Their Care

Family Law

The Florida Legislature passed the “Keeping Children Safe Act,” F.S. §39.0139, effective July 1, 2007, in an effort to prevent sexual abuse during visitation pursuant to judicial determinations from those persons the child is ordered to visit. The legislature’s passage of this act acknowledges that a great percentage of the increasing sexual abuse to children occurs not from strangers but from persons who are known to the children. Pursuant to F.S. §39.0139, visitation is suspended by operation of law and a rebuttable presumption of detriment is created when any of three triggers activate the procedures in the statute.

The three triggers which activate the protective procedures set forth in F.S. §39.0139 and create a rebuttable presumption of detriment to a child are when:

[1] a parent or caregiver has been the subject of a report to the child abuse hotline alleging sexual abuse of any child as defined in s. 39.01; or

[2] has been found guilty of, regardless of adjudication, or has entered a plea of guilty or nolo contendere to various Florida statutes or similar statutes in other states regarding sexual abuse or abuse of a child; or

[3] has been determined by a court to be a sexual predator as defined by Florida statutes or similar laws of another jurisdiction.1

Once one of the above acts that create the rebuttable presumption of detriment occurs, the person may visit or have other contact with the child only after a hearing and an order by the court that allows the visitation or other contact.2 All visitation and contact stops. A court hearing must be held before visitation or contact resumes.

At the hearing, the court appoints a guardian ad litem or attorney ad litem and employs more lenient evidentiary rules. The guardian or attorney ad litem is required to have special training in the dynamics of child sexual abuse.3 The court may receive and rely upon any relevant and material evidence submitted, including written and oral reports, to the extent of its probative value in its effort to determine the action to be taken with regard to the child, even if these reports and evidence may not be competent in an adjudicatory hearing.4

The burden is on the person seeking to resume visitation to prove by clear and convincing evidence that “the safety, well-being, and physical, mental, and emotional health of the child is not endangered by visitation or other contact before the presumption in subsection (3) is rebutted and the court may allow visitation or other contact.”5 The court then enters a written order specifying any conditions it finds necessary to protect the child.6

If the court finds that the person did not rebut the presumption established in subsection (3), the court shall enter a written order prohibiting or restricting visitation or other contact with the child.7 Any visitation under subparagraph (4)(d) must be either supervised by a person who has previously received special training in the dynamics of child sexual abuse or at a supervised visitation program.

The provisions of the statute do not indicate whether they apply to only Ch. 39 proceedings (shelter and dependency matters) or also to proceedings involving children under Ch. 61 (dissolution of marriage actions and supplemental actions), Ch. 742 (domestic violence actions) and other proceedings related to visitation and other contact with a child. F.S. §39.0139(2)(b) provides only that, “[i]t is the intent of the [l]egislature to protect children and reduce the risk of further harm to children who have been sexually abused or exploited by a parent or other caregiver by placing additional requirements on judicial determinations related to visitation and other contact.” Some arguments have been made that F.S. §39.0139 should only be applied to Ch. 39 proceedings and not all judicial determinations related to visitation or other contact, such as dissolution cases and domestic violence cases.

However, the following reasons militate toward the application of the statute to all proceedings involving contact with children: 1) the plain language of the statute indicates application to all judicial determinations related to visitation and other contact; 2) earlier versions of F.S. §39.0139 limiting the provisions to Ch. 39 proceedings were modified to much broader application evidencing a legislative intent that F.S. §39.0139 apply beyond Ch. 39 proceedings; 3) the principles in Ch. 61 and in F.S. §39.0139 both provide protection for children and promote the best interest of the child and must be read in pari materia; and 4) the court’s inherent jurisdiction to act for the benefit of minor children encompasses all statutory and common law.

F.S. §39.0139(2)(b) provides that “[i]t is the intent of the [l]egislature to protect children and reduce the risk of further harm to children who have been sexually abused or exploited by a parent or other caregiver by placing additional requirements on judicial determinations related to visitation and other contact.”This failure to restrict the application of the statute to only Ch. 39 proceedings indicates that all proceedings relating to visitation and other contact with children are included in the statute’s application.

If the legislature had intended to limit F.S. §39.0139 to shelter or dependency or any other specific proceeding, the legislature would not have used the term “judicial proceedings” but would have used much narrower words such as “Ch. 39 proceedings,” “dependency proceeding,” or some other limitation. To conclude that F.S. §39.0139 is limited to shelter or dependency cases and not to other judicial proceedings, like dissolution actions or domestic violence actions, is to add words to the statute that are not there. Section 39.0139 applies to judicial determinations related to visitation and other contact and it is not ambiguous.

The plain meaning of statutory language is the first consideration of statutory construction.8 Where the language of the statute is plain and unambiguous, there is no need for judicial interpretation.9 Because of the broad, plain language of this statute, there is no need for the further utilization of statutory construction principles.

The Florida Supreme Court has held that “it is a fundamental principle of statutory construction that where the language of a statute is plain and unambiguous there is no occasion for judicial interpretation.”10 The Supreme Court explained as follows:

[t]he [l]egislature must be understood to mean what it has plainly expressed and this excludes construction. The [l]egislative intent being plainly expressed, so that the act read by itself or in connection with other statutes pertaining to the same subject is clear, certain and unambiguous, the courts have only the simple and obvious duty to enforce the law according to its terms. Cases cannot be included or excluded merely because there is intrinsically no reason against it. Even where a court is convinced that the [l]egislature really meant and intended something not expressed in the phraseology of the act, it will not deem itself authorized to depart from the plain meaning of the language which is free from ambiguity. If a [l]egislative enactment violates no constitutional provision or principle it must be deemed its own sufficient and conclusive evidence of the justice, propriety and policy of its passage. Courts have then no power to set it aside or evade its operation by forced and unreasonable construction. If it has been passed improvidently the responsibility is with the [l]egislature and not the courts.11

Courts have agreed that if the language of the statute is clear and unequivocal, then the legislative intent must be derived from the words used without involving incidental rules of construction or engaging in speculation as to what the judges might think that the legislators intended or should have intended.12 This is so because a basic principle of statutory construction is that courts “are not at liberty to add words to statutes that were not placed there by the [l]egislature.”13 A court may not add words to F.S. §39.0139 to limit this statute to a specific type of proceeding.

Senate Bill 570 was filed in the Senate on January 11, 2007. The bill, cited as “Keeping Children Safe Act,” created F.S. §39.0143 and was similar to F.S. §39.0139. One of the major differences was found in §3 which provided that, “This section applies to any person involved in a proceeding initiated under this chapter.”14 Senate Bill 570, which provided that the suspension of visitation between a child and a parent accused or convicted of sexual or abuse-related offenses would apply to Ch. 39 proceedings only, died in the Committee on Children, Families, and Elder Affairs on May 4, 2007. The language limiting the statute’s application to Ch. 39 proceedings was replaced in S.B. 20 with broader language applying the statute to “judicial determinations related to visitation and other contact.” The Senate clearly intended a more universal application that would encompass dissolution actions, domestic violence actions, and all other “judicial determinations” where visitation issues arise.

Similarly, H.B. 0077 initially provided that “[t]his section applies to a parent, stepparent, grandparent, stepgrandparent, relative, or caregiver in all proceedings governed by this chapter.”15 As with S.B. 570, this language, of limiting F.S. §39.0139 to only Ch. 39 proceedings, was deleted from H.B. 0077, and the application of the statute was broadened to apply to all “judicial determinations.”

Senate Bill 20 and the last version of H.B. 0077 are identical and eventually became law as F.S. §39.0139. Both the Senate and the House of Representatives removed specific language in their bills that limited the applicability of F.S. §39.0139. In so doing, the legislature evidenced its clear intent to apply F.S. §39.0139 to all judicial determination involving visitation or contact with a child.

Since the statute is clear and unambiguous, nothing else is required to establish that §39.0139 applies to all judicial proceedings. Other rules of statutory interpretation, nonetheless reflect §39.0139’s applicability to dissolution of marriage cases. The classification of a law or a part of a law in a particular title or chapter of Florida Statutes is not determinative on the issue of legislative intent, and where there is a question, established principles of statutory construction must be utilized.16

The doctrine of in pari materia is a principle of statutory construction that requires that statutes relating to the same subject or object be construed together to harmonize the statutes and to give effect to the legislature’s intent.17 “In pari materia” applies when two different statutory provisions deal with the same specific subject or with subjects so connected that the meaning of the one informs the other.18 Under this principle of statutory construction, when two statutes relate to the same thing or to the same subject or object, the statutes are construed together so as to harmonize both statutes and give effect to the legislature’s intent.19

The provisions of both Ch. 39 and Ch. 6120 seek to advance the welfare of children by protecting them from harm. The provisions of these chapters should be read together when nothing indicates the provision exclusively applies to only one type of proceeding. Given the stated purpose of F.S. §39.0139, to “reduce the risk of further harm to children who have been sexually abused or exploited by a parent or other caregiver by placing additional requirements on judicial determinations related to visitation and other contact” and the purposes of the provisions for the welfare of children in Ch. 61, F.S. §39.0139 should apply to divorce cases as well as to Ch. 39 cases.

Ch. 39 (including F.S. §39.0139) and Ch. 61 each promote the welfare of children and include provisions ordering visitation with children.21 The stated purposes of Ch. 39 include,

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; to promote the health and well-being of all children under the state’s care; and to prevent the occurrence of child abuse, neglect, and abandonment;22… the health and safety of the children served shall be of paramount concern;23 [and]…[t]he prevention of child abuse, abandonment, and neglect shall be a priority of this state.24

F.S. §61.001 provides that the purpose of Ch. 61is, “[t]o preserve the integrity of marriage and to safeguard meaningful family relationships”25 and “to mitigate the potential harm to the spouses and their children caused by the process of legal dissolution of marriage.”26 Section 61.13(3) provides that “[f]or 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.”27The provisions of Ch. 61 regarding the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) have been applied to Ch. 39 proceedings.28

When logic dictates and the intent of both statutes is promoted by the application, many statutes outside of Ch. 61 apply to proceedings within divorce proceedings. Examples of such statutes include F.S. §743.07, which provides for support of a dependent person beyond the age of 18 years when such dependency is because of a mental or physical incapacity which began prior to such person reaching majority or if the person is dependent in fact, is between the ages of 18 and 19, and is still in high school, performing in good faith with a reasonable expectation of graduation before the age of 19; F.S. §689.15, which provides that the doctrine of the right of survivorship in cases of real estate and personal property held by joint tenants does not prevail in this state, except in cases of estates by entirety, a devise, transfer, or conveyance heretofore or hereafter made to two or more creates a tenancy in common, unless the instrument creating the estate shall expressly provide for the right of survivorship; and in cases of estates by entirety, the tenants, upon dissolution of marriage, become tenants in common; and the entirety of Ch. 64 regarding partition.

Circuit courts have inherent and continuing jurisdiction to protect children and that jurisdiction is not dependent on any particular statutory chapter.29 Therefore, the court, whether sitting as a dependency court, domestic violence court, family law court, or in any other capacity, should apply F.S. §39.0139 when a judicial determination has to be made relating to visitation or contact with a child. The protection of children from sexual abuse is paramount and must not be limited to application based on how the child in need of protection came into the system.

The argument that the statute is subject to being abused in a dissolution of marriage setting or a domestic violence setting by a parent making a call to the child abuse hotline, alleging sexual abuse of the child by the other parent, which suspends the parent’s visitation, shifts a burden of proof, and establishes the highest civil burden of proof, is not a reason to ignore F.S. §39.0139 in a dissolution of domestic violence setting. The danger of further abuse and intimidation of sexually abused children outweighs the temporary suspension of a person’s visitation until the court can have a hearing. Err on the side of the child, as the wrong choice results in irreparable and more severe ramifications. Given the plain and unambiguous language and analysis, the statute must be implemented for the benefit and welfare of the children.

The legislature did not limit the protection afforded by F.S. §39.0139 only to children under Ch. 39. To the contrary, the legislature specifically stated its intent that the safeguards of §39.0139 apply to all judicial determinations relating to visitation and contact with children. The language is clear and unambiguous with no need to go any further into statutory construction or statutory intent. The legislature amended earlier versions of the House and Senate bills to remove language which would have limited the statute’s applicability to Ch. 39 proceedings and replaced the limiting language with the broader “judicial determinations” provision.

Children should be protected from caregivers who abuse them, whether such children come to the attention of the judicial system through a dependency case, a divorce case, a domestic violence case, or otherwise. The intent and the purpose of F.S. §39.0139 being clear, children must always be protected from those entrusted to care for them.

1 See Fla. Stat. §39.0139(3).
2 See Fla. Stat. §39.0139(4).
3 See Fla. Stat. §39.0139(4)(a).
4 See Fla. Stat. §39.0139(4)(b).
5 Fla. Stat. §39.0139(4)(c).
6 Id.
7 See Fla. Stat. §39.0139(4)(d).
8 State v. Bradford, 787 So. 2d 811 (Fla. 2001).
9 See also McLaughlin v. State, 721 So. 2d 1170 (Fla. 1998) (when language of the statute is clear and unambiguous and conveys clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning).
10 Forsythe v. Longboat Key Beach Erosion Control, 604 So. 2d 452, 454 (Fla. 1992).
11 Van Pelt v. Hilliard, 78 So. 693, 694-95 (1918), citing 2 Sutherland’s Statutory Construction §366, p. 701.
12 Forsythe, 604 So. 2d 452, citing Tropical Coach Line, Inc. v. Carter, 121 So. 2d 779 (Fla. 1960).
13 See Seagrave v. State, 802 So. 2d 281, 287 (Fla. 2001), citing Hayes v. State, 750 So. 2d 1, 4 (Fla. 1999).
14 See §3, Fla. S.B. 570.
15 See §3, Fla. H.B. 0077.
16 State v. Bradford, 787 So. 2d 811 (Fla. 2001).
17 Florida Dept. of State, Div. of Elections v. Martin, 916 So. 2d 763 (Fla. 2005); see also Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So. 2d 452, 455 (Fla. 1992) (“Where possible, courts must give full effect to all statutory provisions and construe related statutory provisions in harmony with one another.”).
18 Brown v. State, 848 So. 2d 361, 364 (Fla. 4th D.C.A. 2003).
19 Maggio v. Florida Dept. of Labor and Employment Security, 899 So. 2d 1074 (Fla. 2005). See also McGhee v. Volusia County, 679 So. 2d 729, 730 n. 1 (Fla. 1996) (the doctrine of in pari materia requires courts to construe related statutes together so that they are harmonized); State v. Allen, 743 So. 2d 532 (Fla. 1st D.C.A. 1997) (court must construe statute in conjunction with other statutes pertaining to same subject matter).
20 As well as Chs. 742 and 63, involving domestic violence and adoption, respectively.
21 See, e.g., Fla. Stat. §§61.13, 39.402(9), and 39.506.
22 Fla. Stat. §39.001(1)(a).
23 Fla. Stat. §39.001(1)(b)1.
24 Fla. Stat. §39.001(6).
25 Fla. Stat. §61.001(2)(a).
26 Fla. Stat. §61.001(2)(c).
27 See Fla. Stat.§61.13(3).
28 See Johnson v. Denton, 542 So. 2d 447 (Fla. 5th D.C.A. 1989); Kennedy v. Kennedy, 559 So. 2d 713 (Fla. 5th D.C.A. 1990).
29 See Waters v. Waters, 578 So. 2d 874 (Fla. 2d D.C.A. 1991) (circuit court has inherent jurisdiction over minor children as to their custody and welfare; jurisdiction is not dependent on the case having originated in either a Ch. 61 or Ch. 39 action or under any other statute); Bilbo v. Bilbo, 688 So. 2d 1031 (Fla. 5th D.C.A. 1997) (circuit court has inherent jurisdiction to control the welfare and act for the protection of minors within its territorial jurisdiction); In Interest of J.M., 499 So. 2d 929 (Fla. 1st D.C.A. 1986) (circuit court has inherent and continuing jurisdiction to entertain matters pertaining to child custody and enter any order appropriate to a child’s welfare); see also P.M. v. Department of Children and Families, 865 So. 2d 8 (Fla. 5th D.C.A. 2003) (While these provisions specifically authorize certain actions by the circuit courts in their role as guardians of the rights of children, courts are not confined to the express provisions of Ch. 39 in providing for the safety and welfare of children.).

Alexander Caballero is a partner with Sessums Mason Black & Caballero, P.A. He is board certified in marital and family law and exclusively practices in the area of family law. He is an executive council member of The Florida Bar Family Law Section and a member of The Florida Board of Bar Examiners. Mr. Caballero received his juris doctorate with high honors from Florida State University College of Law in 1993 and graduated cum laude from the University of South Florida in 1990 with a double major in criminology and psychology.

Ingrid Anderson graduated as a four-year senior scholar from the University of Florida, was awarded a graduate fellowship from the University of South Florida, and earned her J.D. from the University of Kentucky.

This column is submitted on behalf of the Family Law Section, Allyson Hughes, chair, and Susan W. Savard and Laura Davis Smith, editors.

Family Law