Amendment to the Florida Family Law Rules of Procedure

845 So. 2d 174, 28 Fla. L. Weekly Supp. 384, 2003 Fla. LEXIS 669, 2003 WL 1988196
CourtSupreme Court of Florida
DecidedMay 1, 2003
DocketNo. SC02-1574
StatusPublished
Cited by1 cases

This text of 845 So. 2d 174 (Amendment to the Florida Family Law Rules of Procedure) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Amendment to the Florida Family Law Rules of Procedure, 845 So. 2d 174, 28 Fla. L. Weekly Supp. 384, 2003 Fla. LEXIS 669, 2003 WL 1988196 (Fla. 2003).

Opinion

PER CURIAM.

The Family Court Steering Committee (committee)1 has filed a petition with this Court seeking to amend on an emergency basis Florida Family Law Rule of Procedure 12.610, Injunctions for Domestic and Repeat Violence. We have jurisdiction. See art. V, § 2(a), Fla. Const.; Fla. R. Jud. Admin. 2.130(a).

The committee’s charges for 2000-2002 included conducting “an assessment of how courts are handling domestic violence cases and developing] recommendations for model practices for handling these cases in a manner that helps ensure the safety of victims and children.” In re: Family Court Steering Committee, Fla. Admin. Order No. AOSC00-18 (July 13, 2000) (on file with Clerk, Fla. Sup.Ct.). Although certain aspects of this assessment are still under active consideration, the committee states that emergency consideration of the proposed amendments is necessary “to ensure safety and due process for victims, abusers and their children by providing clear, statewide standards for conducting domestic violence injunction hearings.”

The proposals were published in the October 15, 2002, edition of The Florida Bar News. Most comments received were in opposition to the proposed changes, specifically expressing concerns regarding whether assistance being provided by case management personnel who assist the judge with the processing of petitions for domestic violence injunctions would be prohibited under the amended rule.2 However, prior to oral argument in this case, a mediated agreement on the proposed amendments was worked out between the committee, acting through its chair, Judge Raymond T. McNeal, and those opposed to the amendment, acting through Twentieth Judicial Circuit Judge Hugh Starnes. All representatives of the circuits that had filed comments in opposition agreed with the mediated agreement.3 Robin Thompson, representing the Florida Coalition Against Domestic Violence (FCADV), objected to any change from the proposed rule that could compromise the fairness and safety of the court process for victims of domestic violence.

PROPOSED AMENDMENTS

The committee first proposes to amend rule 12.610(c)(1)(B), “Permanent Injunc[176]*176tion,” to change the title of this subdivision to “Final Judgment of Injunction for Protection Against Repeat Violence.” The committee states that it is proposing this separate subdivision because the rest of its proposed changes are not relevant to repeat violence. Further, the committee proposes to amend this subdivision to delete the requirement that a full evidentiary hearing be conducted. As amended, the subdivision only provides that “a hearing” shall be held. The committee states that the qualifying terms “full evidentiary” appeared to cause confusion as to whether the rule required a formal presentation of evidence in instances where the respondent agreed to the rendering of an injunction.

The committee next proposes to add new subdivision (c)(1)(C), “Final Judgment of Injunction for Protection Against Domestic Violence,” to rule 12.610. This new subdivision requires that a hearing be held on the petition for injunction at which the court must make a finding as to whether domestic violence occurred or whether an imminent danger of domestic violence exists. New subdivision (c)(1)(C) provides that if the court determines an injunction will issue, the court shall also rule on the following issues: (1) whether the respondent will have contact with the petitioner, and if so, under what conditions; (2) exclusive use of the parties’ shared residence; (8) temporary custody of minor children; (4) whether temporary visitation will occur and whether it will be supervised; (5) whether temporary child support will be ordered; (6) whether temporary spousal support will be ordered; and (7) such other relief as the court deems necessary for the protection of the petitioner. The new commentary to subdivision (c)(1)(C) states that the judge must make these rulings after deciding to issue an injunction but before referring parties to mediation to ensure that issues involving safety are decided by the judge and are not left to the parties to resolve.

New subdivision (c)(1)(C) next provides that the court may, with the consent of the parties, refer the parties to mediation by a certified family mediator to attempt to resolve the details as to the above rulings. The commentary to the new subdivision provides that prior to ordering the parties to mediate, the court should consider risk factors in the case and the suitability of mediation. According to the commentary, the court should not refer the case to mediation if there exists (1) a degree of past violence, (2) a potential for future lethality, or (3) other factors that would compromise the mediation. The rule provides that mediation by a certified family mediator “shall be the only alternative dispute resolution process offered by the court.” Under the agreement entered into by Judges McNeal and Starnes, the new commentary also provides that court staff may engage in case management services:

In performing case management, court staff may interview the parties separately to identify and clarify their positions. Court staff may present this information to the court along with a proposed order for the court’s consideration in the hearing required by subdivision (b).4

Finally, under new subdivision (c)(1)(C), the court shall review any agreement reached by the parties. If the court approves the agreement, it shall be incorporated into the final judgment. If no agreement is reached, the matters referred will be returned to the court for rulings. Regardless of whether issues are resolved in [177]*177mediation, the new subdivision provides that a domestic violence injunction will be entered or extended the same day as the hearing on the petition for injunction commences.

ANALYSIS

We agree with and approve the amendments as well as the addition of the language that was agreed upon in the mediated agreement. We address only the portion of the amendment that generated the most controversy: the appropriate use of court staff to assist the court in performing its adjudicative functions.

The responsibilities placed on a judge hearing a petition for domestic violence injunction are awesome, with the safety of the victim being paramount. At the same time, the numbers of civil domestic violence petitions being filed each year and the growth in the filings are dramatic. For example, in 2001-2002 there were 60,-044 domestic violence civil filings and 20,-580 repeat violence filings statewide. Only ten years before in 1991-1992, there were 30,609 domestic violence filings and 9,235 repeat violence filings.5 In other words, the number of domestic violence civil filings has doubled in a ten-year period, and the number of repeat violence filings has more than doubled, no doubt as a result of increased understanding of the issue of domestic violence.6

In 2001, this Court unanimously adopted the recommendations of the committee for a Model Family Court setting forth the necessary components and best practices for administering and adjudicating cases involving children and families. See In re Report of the Family Court Steering Committee, 794 So.2d 518 (Fla.2001). Included in the twelve elements identified as “fun[178]*178damental to a model family court” we listed:

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Related

Livingston v. State
847 So. 2d 1131 (District Court of Appeal of Florida, 2003)

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Bluebook (online)
845 So. 2d 174, 28 Fla. L. Weekly Supp. 384, 2003 Fla. LEXIS 669, 2003 WL 1988196, Counsel Stack Legal Research, https://law.counselstack.com/opinion/amendment-to-the-florida-family-law-rules-of-procedure-fla-2003.