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Florida Senate
-
2026
SB 438
By
Senator Leek
7-00204-26 2026438__
1 A bill to be entitled
2 An act relating to child welfare; amending s. 39.01,
3 F.S.; defining the term “incapacitated”; amending s.
4 39.0139, F.S.; revising legislative findings and
5 intent; providing a rebuttable presumption of
6 detriment to a child under certain circumstances;
7 requiring that certain visitation or contact be
8 supervised by a person who has received certain
9 training; amending s. 39.402, F.S.; requiring that a
10 shelter hearing take place within a specified period
11 under certain circumstances; requiring that certain
12 children placed in a shelter be referred to a provider
13 of trauma-informed therapeutic services; amending ss.
14 39.302, 394.495, 934.255, 960.065, and 984.03, F.S.;
15 conforming cross-references; providing an effective
16 date.
17
18 Be It Enacted by the Legislature of the State of Florida:
19
20 Section 1. Present subsections (39) through (91) of section
21 39.01, Florida Statutes, are redesignated as subsections (40)
22 through (92), respectively, a new subsection (39) is added to
23 that section, and subsection (10) and present subsection (39) of
24 that section are amended, to read:
25 39.01 Definitions.—When used in this chapter, unless the
26 context otherwise requires:
27 (10) “Caregiver” means the parent, legal custodian,
28 permanent guardian, adult household member, or other person
29 responsible for a child’s welfare as defined in subsection
(58)
30
(57)
.
31
(
39
)
“Incapacitated” means a person determined by a
32
licensed physician or other qualified professional to be unable
33
to care for his or her child because of mental, physical, or
34
other incapacity that prevents him or her from making informed
35
decisions regarding the child’s welfare, including, but not
36
limited to, the child’s health and safety.
37
(40)
(39)
“Institutional child abuse or neglect” means
38 situations of known or suspected child abuse or neglect in which
39 the person allegedly perpetrating the child abuse or neglect is
40 an employee of a public or private school, public or private day
41 care center, residential home, institution, facility, or agency
42 or any other person at such institution responsible for the
43 child’s welfare as defined in subsection
(58)
(57)
.
44 Section 2. Subsection (2), paragraph (a) of subsection (3),
45 and subsection (5) of section 39.0139, Florida Statutes, are
46 amended to read:
47 39.0139 Visitation or other contact; restrictions.—
48 (2) LEGISLATIVE FINDINGS AND INTENT.—
49 (a) The Legislature finds that:
50 1. For some children who are abused, abandoned, or
51 neglected by a parent or other caregiver, abuse may include
52 sexual abuse
,
parricide, or attempted parricide
.
53 2. These same children are at risk of suffering from
54 further harm during visitation or other contact.
55 3. Visitation or other contact with the child may be used
56 to influence the child’s testimony.
57 (b) It is the intent of the Legislature to protect children
58 and reduce the risk of further harm to children who have been
59 sexually abused or exploited by a parent or other caregiver
,
or
60
whose parent or legal custodian has been killed or incapacitated
61
by a parent or other caregiver,
by placing additional
62 requirements on judicial determinations related to contact
63 between a parent or caregiver who meets the criteria under
64 paragraph (3)(a) and a child victim in any proceeding pursuant
65 to this chapter.
66 (3) PRESUMPTION OF DETRIMENT.—
67 (a) A rebuttable presumption of detriment to a child is
68 created when:
69 1. A court of competent jurisdiction has found probable
70 cause exists that a parent or caregiver has sexually abused a
71 child as defined in s. 39.01;
72 2. A parent or caregiver has been found guilty of,
73 regardless of adjudication, or has entered a plea of guilty or
74 nolo contendere to, charges under the following statutes or
75 substantially similar statutes of other jurisdictions:
76 a. Section 787.04, relating to removing minors from the
77 state or concealing minors contrary to court order;
78 b. Section 794.011, relating to sexual battery;
79 c. Section 798.02, relating to lewd and lascivious
80 behavior;
81 d. Chapter 800, relating to lewdness and indecent exposure;
82 e. Section 826.04, relating to incest; or
83 f. Chapter 827, relating to the abuse of children; or
84 3. A court of competent jurisdiction has determined a
85 parent or caregiver to be a sexual predator as defined in s.
86 775.21 or a parent or caregiver has received a substantially
87 similar designation under laws of another jurisdiction.
88
4. A parent or caregiver is arrested for an offense under
89
s. 782.04 or
s.
782.07 when the victim of the offense is the
90
child’s other parent or legal custodian.
91
5. A parent or caregiver is arrested for an offense under
92
ss. 782.04 and 777.04
,
relating to attempted murder; ss. 782.051
93
and 777.04
,
relating to attempted felony murder;
or
ss. 782.07
94
and 777.04
,
relating to attempted manslaughter, when the victim
95
of the offense is the child’s other parent or legal custodian
96
and the offense has rendered the victim incapacitated.
97 (5) CONDITIONS.—Any visitation or other contact ordered
98 under paragraph (4)(d)
must
shall
be:
99 (a) Supervised by a person who has previously received
100 special training in the dynamics of child sexual abuse
or
101
parricide, as applicable
; or
102 (b) Conducted in a supervised visitation program, provided
103 that the program has an agreement with the court and a current
104 affidavit of compliance on file with the chief judge of the
105 circuit in which the program is located affirming that the
106 program has agreed to comply with the minimum standards
107 contained in the administrative order issued by the Chief
108 Justice of the Supreme Court on November 17, 1999, and provided
109 the program has a written agreement with the court and with the
110 department as described in s. 753.05 containing policies and
111 guidelines specifically related to referrals involving child
112 sexual abuse.
113 Section 3. Present subsections (3) through (18) of section
114 39.402, Florida Statutes, are redesignated as subsections (4)
115 through (19), respectively, a new subsection (3) is added to
116 that section, paragraph (e) is added to present subsection (11)
117 of that section, and paragraph (b) of present subsection (6) of
118 that section is amended, to read:
119 39.402 Placement in a shelter.—
120
(3)
A shelter hearing must take place within 24 hours after
121
a child is taken into custody if:
122
(a) The child’s parent or legal custodian has been arrested
123
for an offense under s. 782.04 or s. 782.07 when the victim of
124
the offense is the child’s other parent or legal custodian; or
125
(b) The child’s parent or legal custodian has been arrested
126
for an offense under ss. 782.04 and 777.04, relating to
127
attempted murder; ss. 782.051 and 777.04, relating to attempted
128
felony murder; or ss. 782.07 and 777.04, relating to attempted
129
manslaughter, when the victim of the offense is the child’s
130
other parent or legal custodian and the offense has rendered the
131
victim incapacitated.
132 (6)
133 (b) The shelter petition filed with the court must address
134 each condition required to be determined by the court in
135 paragraphs
(9)(a), (b), (d), and (h)
(8)(a), (b), (d), and (h)
.
136
(12)
(11)
137
(e) If a child is placed in a shelter pursuant to a court
138
order following a shelter hearing
under subsection (3), the
139
child must be referred to a provider of trauma-informed
140
therapeutic services, which may be:
141
1. A licensed private provider selected by the child’s
142
legal custodian or guardian ad litem; or
143
2. A state-funded program administered by the department or
144
a contracted community-based care provider through a child
145
victim advocacy program.
146 Section 4. Subsection (1) of section 39.302, Florida
147 Statutes, is amended to read:
148 39.302 Protective investigations of institutional child
149 abuse, abandonment, or neglect.—
150 (1) The department shall conduct a child protective
151 investigation of each report of institutional child abuse,
152 abandonment, or neglect. Upon receipt of a report that alleges
153 that an employee or agent of the department, or any other entity
154 or person covered by
s. 39.01(40) or (58)
s. 39.01(39) or (57)
,
155 acting in an official capacity, has committed an act of child
156 abuse, abandonment, or neglect, the department shall initiate a
157 child protective investigation within the timeframe established
158 under s. 39.101(2) and notify the appropriate state attorney,
159 law enforcement agency, and licensing agency, which shall
160 immediately conduct a joint investigation, unless independent
161 investigations are more feasible. When conducting investigations
162 or having face-to-face interviews with the child, investigation
163 visits shall be unannounced unless it is determined by the
164 department or its agent that unannounced visits threaten the
165 safety of the child. If a facility is exempt from licensing, the
166 department shall inform the owner or operator of the facility of
167 the report. Each agency conducting a joint investigation is
168 entitled to full access to the information gathered by the
169 department in the course of the investigation. A protective
170 investigation must include an interview with the child’s parent
171 or legal guardian. The department shall make a full written
172 report to the state attorney within 3 business days after making
173 the oral report. A criminal investigation shall be coordinated,
174 whenever possible, with the child protective investigation of
175 the department. Any interested person who has information
176 regarding the offenses described in this subsection may forward
177 a statement to the state attorney as to whether prosecution is
178 warranted and appropriate. Within 15 days after the completion
179 of the investigation, the state attorney shall report the
180 findings to the department and shall include in the report a
181 determination of whether or not prosecution is justified and
182 appropriate in view of the circumstances of the specific case.
183 Section 5. Paragraph (p) of subsection (4) of section
184 394.495, Florida Statutes, is amended to read:
185 394.495 Child and adolescent mental health system of care;
186 programs and services.—
187 (4) The array of services may include, but is not limited
188 to:
189 (p) Trauma-informed services for children who have suffered
190 sexual exploitation as defined in
s. 39.01(81)(g)
s.
191
39.01(80)(g)
.
192 Section 6. Paragraph (c) of subsection (1) of section
193 934.255, Florida Statutes, is amended to read:
194 934.255 Subpoenas in investigations of sexual offenses.—
195 (1) As used in this section, the term:
196 (c) “Sexual abuse of a child” means a criminal offense
197 based on any conduct described in
s. 39.01(81)
s. 39.01(80)
.
198 Section 7. Subsection (5) of section 960.065, Florida
199 Statutes, is amended to read:
200 960.065 Eligibility for awards.—
201 (5) A person is not ineligible for an award pursuant to
202 paragraph (2)(a), paragraph (2)(b), or paragraph (2)(c) if that
203 person is a victim of sexual exploitation of a child as defined
204 in
s. 39.01(81)(g)
s. 39.01(80)(g)
.
205 Section 8. Subsection (24) of section 984.03, Florida
206 Statutes, is amended to read:
207 984.03 Definitions.—When used in this chapter, the term:
208 (24) “Neglect” has the same meaning as in
s. 39.01
s.
209
39.01(53)
.
210 Section 9. This act shall take effect July 1, 2026.