Posted by Nydia Streets of Streets Law in Florida Domestic Violence
Can a court award sole custody of children in a Florida stalking injunction case? There is a difference in relief that is available regarding child custody in domestic violence cases and stalking cases. This is explored in the case Rosaly v. Konecny, 4D21-3236 (Fla. 4th DCA August 31, 2022).
The parties to this case had minor children in common. The mother alleged the father drove by her home multiple times per day, on one occasion leaning out of his car window with an object in-hand stating “You’re dead you piece of [expletive]. Wait until I get done with you.” She also alleged the father operated a drone over her home at lease three times. Based on this evidence, the trial court entered a stalking injunction against the father and included in the order a statement that the mother “shall have 100% sole time-sharing with all minor children.” The father appealed.
The appellate court upheld the injunction, holding “When viewed together with the drive-bys, [the father’s] use of a drone supports the issuance of an injunction. The record reveals no legitimate purpose for [the father’s] course of conduct.” However, the court reversed the portion of the order giving the mother sole time-sharing with the children. It held “Section 784.0485 does not provide authority for making a custody determination in a final judgment for protection against stalking. Compare § 784.0485(6)(a), Fla. Stat. (2021) (enumerating the relief a court may grant in a stalking injunction, which does not expressly include a change in custody), with § 741.30(6)(a), Fla. Stat. (2021) (enumerating the relief a court may grant in a domestic violence injunction, which expressly includes ‘providing the petitioner with 100 percent of the time-sharing in a temporary parenting plan’ on ‘the same basis as provided in Chapter 61’). It appears that the trial court was trying to shoehorn a custody determination into the generic provision authorizing courts in stalking cases to award ‘such other relief as the court deems necessary for the protection of a victim’ of stalking, ‘including injunctions or directives to law enforcement agencies, as provided in this section.’ But that statutory language is contained in both sections 784.0485 and 741.30, so the provision in the stalking statute cannot be interpreted as encompassing a child custody determination, particularly where that provision does not reference Chapter 61 or the best interests of the children. If the legislature had intended section 784.0485 to allow for custody determinations, it could have said so, as it did in section 741.30.”
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