The Florida Bar

Florida Bar Journal

Florida’s Supervised Visitation Programs: The Next Phase

Family Law

Enormous changes have taken place since 1997, the last time The Florida Bar Journal included detailed information about supervised visitation programs in Florida.1 At that time, 15 programs supervised a few thousand visits by nonresidential parents with their children. These programs were considered pioneers in an emerging court service. While supervised visitation programs still serve courts and communities by providing a safe and neutral setting in which noncustodial parents can have supervised access to their children in dependency, domestic violence, and high-conflict custody cases,2 the number of visits has substantially increased. In 2002, over 40,000 visits were supervised across the state by 42 programs.3 Today, every judicial circuit is home to at least one program.4 As in 1997, however, family court judges and lawyers still call for the development of more supervised visitation and monitored exchange programs and the expansion of existing ones.5 This article offers an overview of the growth of, and current issues surrounding, supervised visitation and exchange in Florida and nationally.

Minimum Standards and Essential Elements

At the vanguard of the nation, there were only two other states—California and Kansas6—that had developed statewide minimum standards for supervised visitation centers. The Florida Supreme Court’s Family Court Steering Committee began developing a skeletal set of standards for supervised visitation and exchange programs in 1998. In an attempt to create some uniformity in such areas as staff training, terminology, and basic practice norms, the committee presented a set of standards to Chief Justice Harding. The chief justice endorsed the standards and crafted an administrative order in 1999 mandating that chief judges of each circuit enter into an agreement with local programs (to whom trial judges referred cases) that agreed to comply with the standards.7 The purposes of providing supervised visitation expressed by the standards include “enabling an ongoing relationship between the noncustodial parent and child by impartially observing their contact in a safe and structured environment and to facilitate appropriate child/parent interaction during supervised contact.” Monitored exchange, which is offered by some of Florida’s supervised visitation programs, means

the supervision of the child’s movement from the custodial to noncustodial parent at the start of noncustodial parent/child visit or from the noncustodial parent back to the custodial parent at the end of the visit. This type of supervised contact is for those cases in which contact causes conflict between the adults but the contact between the parent and child could be expected to proceed without incident.8

Still, some circuits do not have agreements between the courts and local programs (even in circuits in which judges actively refer cases to those same programs). Nevertheless, supervised visitation is listed as one of the 12 “essential elements” of a model family court in the Family Court Steering Committee’s report,9 which the Supreme Court “wholeheartedly endorsed” as essential to the successful function of a model family court.

The ABA Takes Notice

Legal commentators have touted supervised visitation and exchange as a valuable service for vulnerable children and troubled families,10 especially in domestic violence cases. The American Bar Association acknowledged that allowing family members to supervise visits does not sufficiently address issues of safety and may place the monitoring family member or friend at risk of violence or manipulation by an abusive parent. The ABA approved a policy in 2000 encouraging courts to “provide or identify and make use of ” locations in which supervised visitation can safely occur.11

Additionally, in 2001 the ABA’s Family Law Section published its Wingspread Report,12 an action plan replete with recommendations for changes in the legal and mental health systems to mitigate the effects of high-conflict custody cases on children. As the Wingspread Report’s preamble states, “high-conflict custody cases seriously harm the children involved.” The report then lists supervised visitation among services that should be available to all families without regard to income to alleviate that harm.

Many other states have recently sanctioned the use of supervised visitation programs, among them New Mexico,13 which empowers judicial districts to develop programs by local court rule; Idaho,14 which touts supervised visitation as an effective response to families in domestic relations disputes; and Tennessee,15 which authorizes its Human Services Department to apply for federal grants for supervised visitation. The national media, from the New York Times16 to the Chicago Tribune,17 have run items on supervised visitation and monitored exchange. Still, Florida remains at the forefront of supervised visitation with more programs listed by the international Supervised Visitation Network than any other state and with an unsurpassed active support by the Florida Department of Children and Families, which provides some funding and technical assistance for programs and all levels of the judiciary. It seems logical, then, that the most vexing issues arising from supervised visitation should be addressed in Florida.

Safety and Critical Incidents

Only a small minority of family court cases ever gets referred to supervised visitation. Thus, visitation programs provide services to probably the most emotionally volatile group of litigants in the court system. The anxiety, fear, anger, despair, and grief that these parents feel—and the actual harm they have experienced—can manifest themselves in many ways at visits, a time of heightened emotions. In 1999, after seeing a rise in anecdotal reports from directors, the Clearinghouse on Supervised Visitation began to collect data from Florida programs on security breaches and critical incidents. The development of a uniform reporting system of supervised visitation data is a front-burner issue of the Task Force for Children’s Justice. Categories of incidents collected by the clearinghouse are excerpted from the 2002 Critical Incident Report. They point out the need for both rigorous staff training and on-site security. These incidents are not unique to Florida; they are repeated in programs around the U.S.:

• Incidents involving substance abuse, with the nonresidential parents showing up for visits smelling of alcohol, openly intoxicated, or under the possible influence of illegal drugs;

• Incidents involving parental unwillingness to comply with program rules, unwilling/unable to refrain from yelling at child, criticizing the other parent in the child’s presence, using profanity, and criticizing staff;

• Incidents involving threats of physical aggression/intimidation in which staff or the residential parent is threatened with bodily harm;

• Incidents involving parental mental illness, such as parents arriving unmedicated exhibiting delusional behavior, even to the point of hallucinating on-site;

• Incidents involving actual acts of physical aggression, including parents slapping and biting staff members, or pushing staff away in an attempt to reach the residential parent, nonresidential parents getting into physical altercations, and one instance of parental kidnapping, in which the nonresidential parent grabbed the children and ran out of the building, after knocking down staff.

Cases that arise from injunctions for protection against domestic violence have been extremely common and distinctly troublesome. They have resulted in numerous critical incidents, mostly involving attempts by the alleged batterer to have prohibited contact with his victim. Program directors report a great deal of subtlety in these incidents on the part of the visiting parent/alleged batterer.18 For example, visiting parents in domestic violence cases have tried to elicit information during the visit from the child about the other parent’s whereabouts. In some instances, they have deliberately flouted the program’s schedule by leaving early, waiting in the parking lot for the other parent, arriving late to increase the likelihood of meeting the other parent, and have devised ingenious ways to send intimidating messages via the child to the other parent. This last category poses an ongoing challenge for supervised visitation program staff, and requires enormous amounts of vigilance. For example, visiting parents have written notes and slipped them in the child’s clothing, written words on the child’s clothing, and even tried to write on the child’s skin. Messages—in one case, a suicide note—have been placed on and in the residential parent’s car in the program parking lot, on the side of juice boxes that the program provides the children, and in toys and gifts brought to the children. In one case, the father brought his three-year-old daughter a flower at each visit, which she brought home with her. After a few visits, the child’s mother told staff that her abusive husband had told her that the only time she would ever get flowers was on her grave. Such incidents reveal the need for increased staff training and adequate funding for security.

Probably the most difficult of cases referred to supervised visitation are those involving child sexual abuse. Parents have brought to visits objects associated with the child’s abuse, e.g., toys that trigger memories of the abuse. This belies the staff’s assurance to the child that he or she will be safe at visits and has led to the retraumatizing of children on-site at programs. Directors also report that parents have minimized abuse to the child during visits, and have in a few instances acted in physically inappropriate ways with their children, such as openly masturbating or fondling the child. Additionally, sexualized children have acted inappropriately with children from different families during visits.

Need for Security, Training, and Informative Referrals

Many of the problems that have occurred at supervised visitation programs could be addressed by attention to the following: mandated security, training, and informative referrals. Currently, programs are only required to have a written security protocol. Requiring that programs have a law enforcement officer with the power of arrest on-site during visits lends a distinct layer of safety to each visit. While security devices such as metal detectors and breathalyzers used by staff may seem adequate, this illusion is dispelled when the metal detector beeps or the litmus test turns color, indicating an armed or intoxicated parent. Program staff, many of whom are community volunteers, college interns, and minimally paid community workers, are ill-equipped to disarm parents or to inform a parent emboldened by drugs or alcohol that a visit is cancelled.

Mandatory ongoing training of supervised visitation staff would address the issue of high staff turnover and ensure that directors and staff have adequate expertise in dealing with high-conflict families. In 1998, the Clearinghouse on Supervised Visitation developed a competency-based training manual for Florida’s supervised visitation providers. Funded by the Department of Children and Families, this manual was intended to provide the minimum training necessary for providers in areas of child abuse/neglect, parental substance abuse, parental mental illness, and domestic violence while also outlining the requisite skills needed by staff and volunteers to appropriately monitor these cases. While this manual has provided core training in these competencies, there is no guarantee that all of Florida’s providers have used the training manual or used the most recent manual produced by the clearinghouse on child sexual abuse referrals. Further, staff and volunteers of these programs often lack specific degrees in human services or specific experience in working with the type of families that are referred by the court. Many programs have only one paid staff member and rely extensively upon community volunteers or interns to monitor visits. Mandatory training and documentation of training is imperative in ensuring safe visits.

In October 2003, the clearinghouse published a survey on judicial practices report. The survey revealed that many judges are unfamiliar with the local supervised visitation programs to which they refer cases.19 Although the survey results were troubling in that respect, they also indicated that judges affirmatively want more training in the effective use of supervised visitation services and related issues.

There are several ways to improve judicial involvement. Judicial referrals should include all background information currently known pertinent to keeping the child safe at visits, and should have a formalized mechanism for reporting critical incidents. For example, if a court referral indicates a need for a supervised visit but does not mention a sexual abuse allegation, the program director may not realize that the crayons a parent brings to each visit are the same kind he used to sexually abuse the child. Likewise, if the staff has incomplete background information about the case, they may not realize that the photographs the parent brings to show a child are of a camping trip during which the child was sexually abused. These are examples of real cases. Too often judges mistakenly omit details that would alert staff to important issues like the existence of orders for protection, arrest and criminal history information, and details about past physical or sexual abuse. Programs should be authorized to obtain basic specific case information from the Department of Children and Families regarding abuse allegations and findings. After the court has made an informative referral, there should be some formal mechanism in place for the court to be apprised of critical incidents. This mechanism could be periodic judicial review of cases referred to supervised visitation (which is currently not the practice in Florida), or some method by which program directors, who are not parties to the cause, can alert the court to problems without endangering parties’ procedural due process rights. Without such information, programs will not be able to fulfill their fundamental mission: keeping children safe.

Need for Legislative Involvement

The minimum standards for supervised visitation program agreements developed by the steering committee were always considered a beginning of the standardization of supervised visitation services, not the end. Yet the legislature has never enacted legislation creating a means for operationalizing the minimum standards, developing security protocols, certifying programs, or monitoring them to ensure compliance, despite a direct request from the chief justice in 1999 to the speaker of the house and president of the senate, saying in part:

The lack of guidelines or standards for these programs and lack of oversight of these programs, particularly as to staff and visitor safety and staff training, is of great concern. . . . It does not appear that this is an appropriate function for the chief judge, but, rather, is better suited to an executive branch agency. . . . I urge the legislature to consider establishing a certification process, and designate an entity outside of the judicial branch to be responsible for oversight of supervised visitation programs.20

Bills introduced each year thereafter by individuals or legislative committees were not passed by both houses of the legislature. More recently, supervised visitation issues have been included in the comprehensive Family Court Reform bill introduced in the 2002 Legislature by the Senate Committee on Children and Families and the Senate Judiciary Committee (SB1226), and again in 2003 by Senator Evelyn Lynn (SB 1574 without house sponsorship). In addition to authorizing the development of a certification and monitoring process for supervised visitation programs, these bills have included creative and cost-effective proposals to support visitation services. Allowing agencies which employ law enforcement officers to authorize volunteer service at supervised visitation programs (as a means of fulfilling requirements of law enforcement for continuing education) was one such proposal popular with programs. Unfortunately, the legislature has not enacted any statute supporting supervised visitation since it passed F.S. §75321 in 1996, a statute that addressed supervised visitation in its infancy, and did not address any issues of standards, safety, or training. Because of the legislature’s lack of involvement, supervised visitation programs may be the only child-welfare related services in Florida that are not overseen by a state entity. Until an executive branch agency is authorized and funded to provide oversight to these programs, security and training issues will not be adequately addressed.

Funding Problems Create Instability

As the Supreme Court noted in its opinion endorsing the recommendations of the Family Court Steering Committee, “the failure to adequately fund the necessary services will ultimately result in the failure of the model family court concept.” Funding remains unstable for supervised visitation programs, with programs relying on ever-diminishing funds that provide fractions of their budgets from a pastiche of funding sources: Access and Visitation Grants for the Department of Children and Families, Victims of Crime Act (VOCA) funds through the office of the attorney general, city/county funds, the United Way, Junior League, and small private foundations. Only four programs receive Department of Justice, Office of Violence Against Women funds.22 These federal funds are provided by the Violence Against Women Act Safe Havens for Children Pilot Program, which provides grants to units of government that contract with nonprofit supervised visitation programs supplying services in domestic violence, sexual assault, or stalking cases.23 Unfortunately, the amount of federal funding, $15 million, was created to assist in the development of supervised visitation nationwide. Only 30 programs nationwide were funded by the Safe Haven funds in 2002. In May 2003, the Office of the Attorney General informed programs that it would no longer use VOCA funds to support supervised visitation services. The reasons were twofold. First, the dollar amounts of federal grants under VOCA were declining, and second, the Florida attorney general’s office did not consider supervised visitation a direct service to victims of crime and their children. While the number of Florida programs has grown so significantly, directors annually report shrinking budgets, shortened hours of operation, and trouble paying staff, creating even more dependence on volunteers and hourly wage monitors who have little expertise in critical areas such as domestic violence dynamics, child development, sexual abuse, and substance abuse issues.

Court Admission of Records in Custody Proceedings

The records produced at supervised visits, called “observation reports,” are commonly used as evidence in custody disputes by parental litigants. This trend is troubling because it creates the ethical “trap of the good visit”24 in Florida as well as in many other states. Specifically, program directors worry that highly orchestrated visits, governed by rules that the parents are frequently informed of before and during visitation to ensure compliance and make the child feel safe, are later used as evidence that unsupervised visits would likewise proceed satisfactorily. When a visit goes according to the expressed rules, program directors find themselves being asked to testify to facts that imply much more, e.g., that the child was affectionate with the parent, and the parent was appropriate with the child. At least one party—and the court—often wants the director to extrapolate from the visit how the same parent would act with the child if the visit had been unsupervised. As anxious as courts may be to gather information to assist them with making child custody determinations, supervised visitation monitors are not substitutes for mental health professionals, and monitored visits are not replacements for formal custody evaluations. In Florida, as well as all other states, most supervised visitation monitors are not licensed clinicians. Thus, the future will probably witness appellate consideration of hearsay and other evidentiary issues arising from the evidence produced at each supervised visit.

Tort Liability Issues

Supervised visitation exists at the crossroads of family law and social services, in the still-developing area of “therapeutic jurisprudence.”25 Judges recognize that families involved in divorce litigation may have a variety of problems. The resulting trend toward offering families access to services to address their underlying problems, such as domestic violence, substance abuse, mental health issues, brings a host of service providers into the dispute. The clearinghouse finds that supervised visitation providers are routinely threatened with suit by litigants. In fact, at the annual Supervised Visitation Network meeting in Destin in 2002, 55 percent of programs responded affirmatively to the question: “Have you ever been threatened with a lawsuit by a parent ordered to use your program?” Also, 70 percent of responders answered “yes” to the question: “Are you concerned that you, your staff, or your program might get sued by a parent ordered to participate in your program?”26 This fear—combined with the nature of high-conflict custody cases and the fact that many programs rely on volunteers, minimally paid community members, and college students—threatens to undermine supervised visitation. It would not take an avalanche of lawsuits to deter well-meaning community members—who are currently not protected by statute with immunity as guardians ad litem are27—from working at supervised visitation programs.

Florida continues to be a pioneer in supervised visitation. The judiciary and communities across the state continue to support visitation programs. Without legislative leadership, however, these programs will never be able to give Florida’s children the protection they deserve.

1 See generally, Bonnie S. Newton, Visitation Centers: A Solution without Critics, 71 Fla. B.J. 54 (Jan. 1997), and Karen Oehme, Supervised Visitation Programs in Florida: A Cause for Optimism, a Call for Caution, 71 Fla. B.J. 50 (Feb. 1997).
2 Many cases include allegations of severe parental misconduct, such as substance abuse, parental kidnapping, and child abuse or neglect.
3 Clearinghouse records, 2003, on file with the authors.
4 See list of programs in Florida, on www.familyvio.ssw.fsu.edu.
5 See, e.g. Amy B. Levin, Comment, Child Witnesses of Domestic Violence: How Should Judges Apply the Best Interest of the Child Standard in Custody and Visitation Cases Involving Domestic Violence? 47 UCLA L. Rev. 813, 819 (2000) (arguing that courts should mandate the use of supervised visitation cases in domestic violence cases to keep children safe).
6 See, e.g., Cal. Rules of Ct., Standards of Judicial Admin. §26.2(b) 2002 and Child Exch. And Visitation Center Guidelines §2.3 (Kan. Att’y Gen. 1999), available at www.ink.org/public/ksag/contents/children/cevc-6.htm.
7 See Minimum Standards for Supervised Visitation Program Agreements (Fla. Sup. Ct. 1999), available at www/flcourts.org/osca/divisions/family/bin/svnstandard.pdf. See also Administrative Order of the Florida Supreme Court, Nov. 19, 1999.
8 See Minimum Standards, id, at I.A. (7).
9 See Fla. Supreme Court, Opinion No. SC00-1410, In Re: Report of the Family Court Steering Committee, p. 19, May 3, 2001, available at www.flcourts.org.
10 See, e.g., Debra A. Clement, Note, A Compelling Need for Mandated Use of Supervised Visitation Programs, 36 Fam. & Conciliation Cts. Rev. 294 (1998) (arguing that legislatures provide state funding for supervised visitation programs).
11 American Bar Association Commission on Domestic Violence, Policy OOA109A, approved by the American Bar Association House of Delegates a the Annual Meeting in July, 2000.
12 Sarah H. Ramsey, The Wingspread Report and Action Plan: High-Conflict Custody Cases: Reforming the System for Children, 39 Fam. & Conciliation Cts. Rev. 146,152 (2001).
13 N.M. Stat. Ann. 40-12-5.1 (2002).
14 Idaho Code §32-1402 (2001).
15 Tenn. Code Ann.§36-6-301 (2000).
16 Catherine St. Louis, What They Were Thinking, New York Times Magazine, p. 16, January 27, 2002.
17 Amanda Vogt, Making Divorce Less Painful for Parents and their Kids, The Chicago Tribune, page 1, February 5, 2003 (discussing recent child deaths and quoting child advocates and judges who want more monitored exchange sites in Illinois).
18 For more descriptions of batterer behavior, see Sharon Maxwell & Karen Oehme, Strategies to Improve Supervised Visitation in Domestic Violence cases, Violence Against Women Online Resources (Oct. 2001) at www/vaw/umn.edu/FinalDocuments/Commissioneddoc/strategies.asp.
19 The survey can be viewed on the clearinghouse Web site, http://familyvio.ssw.fsu.edu.
20 Letter to Toni Jennings and John Thrasher, November 17, 1999, from Chief Justice Major Harding. Copy on file with the authors.
21 Fla. Stat. §753 created a Supervised Visitation Network, which formalized itself a year later as a state chapter of the Supervised Visitation Network. It also authorized the Clearinghouse on Supervised Visitation at Florida State University to carry out responsibilities under the statute.
22 In 2002, Valued Visits in Ft. Pierce and the Family Nurturing Program in Jacksonville received federal funds. In October 2003, the Judge Ben Gordon Visitation Program in Shalimar and the CASA program of St. Petersburg were informed that they would also be receiving federal contracts to provide services in domestic violence cases.
23 42 U.S.C.A. §10420(a) (West Supp. 2002). The Safe Havens for Children Pilot Program provides for the awarding of grants to states, units of local governments, and Indian tribal governments that propose to enter into or expand the scope of existing supervised visitation programs in domestic violence, stalking, child abuse or sexual assault cases.
24 For a detailed description of this problem, see Nat Stern and Karen Oehme, The Troubling Admission of Supervised Visitation Records in Custody Proceedings, 75 Temple L. Rev. 271, 299 (2002).
25 See, e.g., David B. Wexler and Bruce J Winnick, Essays in Therapeutic Jurisprudence (Carolina Academic Press, 1991).
26 Survey conducted by the Clearinghouse on Supervised Visitation, on file with authors.
27 Fla. Stat. §61.405.

Karen Oehme is the program director of the Clearinghouse on Supervised Visitation, in the Institute for Family Violence Studies at Florida State University’s School of Social Work. She is a 1987 graduate of Florida State University College of Law.

Sharon Maxwell is the director of the Institute for Family Violence Studies, and is an associate professor in the School of Social Work. The clearinghouse provides technical and legal assistance to Florida’s supervised visitation programs and serves as a nationwide resource for courts, legislatures, and social services agencies on supervised visitation issues.

This column is submitted on behalf of the Family Law Section, Richard West, chair, and Michele K. Cummings and Jeffrey Weissman, editors.

Family Law