S 438

Florida Senate - 2026  SB 438
By Senator Leek
7-00204-26  2026438__
1A bill to be entitled
2An act relating to child welfare; amending s. 39.01,
3F.S.; defining the term “incapacitated”; amending s.
439.0139, F.S.; revising legislative findings and
5intent; providing a rebuttable presumption of
6detriment to a child under certain circumstances;
7requiring that certain visitation or contact be
8supervised by a person who has received certain
9training; amending s. 39.402, F.S.; requiring that a
10shelter hearing take place within a specified period
11under certain circumstances; requiring that certain
12children placed in a shelter be referred to a provider
13of trauma-informed therapeutic services; amending ss.
1439.302, 394.495, 934.255, 960.065, and 984.03, F.S.;
15conforming cross-references; providing an effective
16date.
17
18Be It Enacted by the Legislature of the State of Florida:
19
20Section 1. Present subsections (39) through (91) of section
2139.01, Florida Statutes, are redesignated as subsections (40)
22through (92), respectively, a new subsection (39) is added to
23that section, and subsection (10) and present subsection (39) of
24that section are amended, to read:
2539.01 Definitions.—When used in this chapter, unless the
26context otherwise requires:
27(10) “Caregiver” means the parent, legal custodian,
28permanent guardian, adult household member, or other person
29responsible for a child’s welfare as defined in subsection (58)
30(57).
31(39) “Incapacitated” means a person determined by a
32licensed physician or other qualified professional to be unable
33to care for his or her child because of mental, physical, or
34other incapacity that prevents him or her from making informed
35decisions regarding the child’s welfare, including, but not
36limited to, the child’s health and safety.
37(40)(39) “Institutional child abuse or neglect” means
38situations of known or suspected child abuse or neglect in which
39the person allegedly perpetrating the child abuse or neglect is
40an employee of a public or private school, public or private day
41care center, residential home, institution, facility, or agency
42or any other person at such institution responsible for the
43child’s welfare as defined in subsection (58) (57).
44Section 2. Subsection (2), paragraph (a) of subsection (3),
45and subsection (5) of section 39.0139, Florida Statutes, are
46amended to read:
4739.0139 Visitation or other contact; restrictions.—
48(2) LEGISLATIVE FINDINGS AND INTENT.—
49(a) The Legislature finds that:
501. For some children who are abused, abandoned, or
51neglected by a parent or other caregiver, abuse may include
52sexual abuse, parricide, or attempted parricide.
532. These same children are at risk of suffering from
54further harm during visitation or other contact.
553. Visitation or other contact with the child may be used
56to influence the child’s testimony.
57(b) It is the intent of the Legislature to protect children
58and reduce the risk of further harm to children who have been
59sexually abused or exploited by a parent or other caregiver, or
60whose parent or legal custodian has been killed or incapacitated
61by a parent or other caregiver, by placing additional
62requirements on judicial determinations related to contact
63between a parent or caregiver who meets the criteria under
64paragraph (3)(a) and a child victim in any proceeding pursuant
65to this chapter.
66(3) PRESUMPTION OF DETRIMENT.—
67(a) A rebuttable presumption of detriment to a child is
68created when:
691. A court of competent jurisdiction has found probable
70cause exists that a parent or caregiver has sexually abused a
71child as defined in s. 39.01;
722. A parent or caregiver has been found guilty of,
73regardless of adjudication, or has entered a plea of guilty or
74nolo contendere to, charges under the following statutes or
75substantially similar statutes of other jurisdictions:
76a. Section 787.04, relating to removing minors from the
77state or concealing minors contrary to court order;
78b. Section 794.011, relating to sexual battery;
79c. Section 798.02, relating to lewd and lascivious
80behavior;
81d. Chapter 800, relating to lewdness and indecent exposure;
82e. Section 826.04, relating to incest; or
83f. Chapter 827, relating to the abuse of children; or
843. A court of competent jurisdiction has determined a
85parent or caregiver to be a sexual predator as defined in s.
86775.21 or a parent or caregiver has received a substantially
87similar designation under laws of another jurisdiction.
884. A parent or caregiver is arrested for an offense under
89s. 782.04 or s. 782.07 when the victim of the offense is the
90child’s other parent or legal custodian.
915. A parent or caregiver is arrested for an offense under
92ss. 782.04 and 777.04, relating to attempted murder; ss. 782.051
93and 777.04, relating to attempted felony murder; or ss. 782.07
94and 777.04, relating to attempted manslaughter, when the victim
95of the offense is the child’s other parent or legal custodian
96and the offense has rendered the victim incapacitated.
97(5) CONDITIONS.—Any visitation or other contact ordered
98under paragraph (4)(d) must shall be:
99(a) Supervised by a person who has previously received
100special training in the dynamics of child sexual abuse or
101parricide, as applicable; or
102(b) Conducted in a supervised visitation program, provided
103that the program has an agreement with the court and a current
104affidavit of compliance on file with the chief judge of the
105circuit in which the program is located affirming that the
106program has agreed to comply with the minimum standards
107contained in the administrative order issued by the Chief
108Justice of the Supreme Court on November 17, 1999, and provided
109the program has a written agreement with the court and with the
110department as described in s. 753.05 containing policies and
111guidelines specifically related to referrals involving child
112sexual abuse.
113Section 3. Present subsections (3) through (18) of section
11439.402, Florida Statutes, are redesignated as subsections (4)
115through (19), respectively, a new subsection (3) is added to
116that section, paragraph (e) is added to present subsection (11)
117of that section, and paragraph (b) of present subsection (6) of
118that section is amended, to read:
11939.402 Placement in a shelter.—
120(3) A shelter hearing must take place within 24 hours after
121a child is taken into custody if:
122(a) The child’s parent or legal custodian has been arrested
123for an offense under s. 782.04 or s. 782.07 when the victim of
124the offense is the child’s other parent or legal custodian; or
125(b) The child’s parent or legal custodian has been arrested
126for an offense under ss. 782.04 and 777.04, relating to
127attempted murder; ss. 782.051 and 777.04, relating to attempted
128felony murder; or ss. 782.07 and 777.04, relating to attempted
129manslaughter, when the victim of the offense is the child’s
130other parent or legal custodian and the offense has rendered the
131victim incapacitated.
132(6)
133(b) The shelter petition filed with the court must address
134each condition required to be determined by the court in
135paragraphs (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
138order following a shelter hearing under subsection (3), the
139child must be referred to a provider of trauma-informed
140therapeutic services, which may be:
1411. A licensed private provider selected by the child’s
142legal custodian or guardian ad litem; or
1432. A state-funded program administered by the department or
144a contracted community-based care provider through a child
145victim advocacy program.
146Section 4. Subsection (1) of section 39.302, Florida
147Statutes, is amended to read:
14839.302 Protective investigations of institutional child
149abuse, abandonment, or neglect.—
150(1) The department shall conduct a child protective
151investigation of each report of institutional child abuse,
152abandonment, or neglect. Upon receipt of a report that alleges
153that an employee or agent of the department, or any other entity
154or person covered by s. 39.01(40) or (58) s. 39.01(39) or (57),
155acting in an official capacity, has committed an act of child
156abuse, abandonment, or neglect, the department shall initiate a
157child protective investigation within the timeframe established
158under s. 39.101(2) and notify the appropriate state attorney,
159law enforcement agency, and licensing agency, which shall
160immediately conduct a joint investigation, unless independent
161investigations are more feasible. When conducting investigations
162or having face-to-face interviews with the child, investigation
163visits shall be unannounced unless it is determined by the
164department or its agent that unannounced visits threaten the
165safety of the child. If a facility is exempt from licensing, the
166department shall inform the owner or operator of the facility of
167the report. Each agency conducting a joint investigation is
168entitled to full access to the information gathered by the
169department in the course of the investigation. A protective
170investigation must include an interview with the child’s parent
171or legal guardian. The department shall make a full written
172report to the state attorney within 3 business days after making
173the oral report. A criminal investigation shall be coordinated,
174whenever possible, with the child protective investigation of
175the department. Any interested person who has information
176regarding the offenses described in this subsection may forward
177a statement to the state attorney as to whether prosecution is
178warranted and appropriate. Within 15 days after the completion
179of the investigation, the state attorney shall report the
180findings to the department and shall include in the report a
181determination of whether or not prosecution is justified and
182appropriate in view of the circumstances of the specific case.
183Section 5. Paragraph (p) of subsection (4) of section
184394.495, Florida Statutes, is amended to read:
185394.495 Child and adolescent mental health system of care;
186programs and services.—
187(4) The array of services may include, but is not limited
188to:
189(p) Trauma-informed services for children who have suffered
190sexual exploitation as defined in s. 39.01(81)(g) s.
19139.01(80)(g).
192Section 6. Paragraph (c) of subsection (1) of section
193934.255, Florida Statutes, is amended to read:
194934.255 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
197based on any conduct described in s. 39.01(81) s. 39.01(80).
198Section 7. Subsection (5) of section 960.065, Florida
199Statutes, is amended to read:
200960.065 Eligibility for awards.—
201(5) A person is not ineligible for an award pursuant to
202paragraph (2)(a), paragraph (2)(b), or paragraph (2)(c) if that
203person is a victim of sexual exploitation of a child as defined
204in s. 39.01(81)(g) s. 39.01(80)(g).
205Section 8. Subsection (24) of section 984.03, Florida
206Statutes, is amended to read:
207984.03 Definitions.—When used in this chapter, the term:
208(24) “Neglect” has the same meaning as in s. 39.01 s.
20939.01(53).
210Section 9. This act shall take effect July 1, 2026.