What Happens When a Child Is Present During a Florida Domestic Violence Arrest?

Across the U.S., it’s estimated between 7 million and 14 million children are exposed to violence against their mothers (or female caretakers) by other family members. In homes where domestic violence does occur between parents, approximately 87 percent of the kids witness it, and 30-60 percent are abused themselves.

As Fort Lauderdale domestic violence defense lawyers, we can explain that “witnessing” an event of domestic violence can mean hearing, seeing, or having it inferred. It can include seeing the aftermath of such violence, such as the victim’s bruising, cuts, broken bones, blood, or shattered glass, furniture, etc.

From a criminal defense lawyer’s perspective, it’s important to underscore that Florida is one of a handful of states that enhances criminal penalties for domestic violence offenses that happen when kids are present. So if you’re arrested for domestic violence in South Florida and there was a child in the home or vicinity, be prepared for more serious consequences. This is true even if the kids were very young and can’t recount what happened.

If you’re arrested on a misdemeanor domestic violence charge, the court will consider the fact that children were present to be an aggravating factor, which can result in more jail time or other penalties. If you’re charged with a felony, the aggravating factor will be calculated into the state’s point system for sentencing.

As noted in F.S. 921.0024, the sentence for a domestic violence conviction will be subject to a subtotal sentence multiplier of 1.5 points if the incident was witnessed by a child under the age of 16. “Witnessing” an event of domestic violence can mean hearing, seeing, or having it inferred. It can include seeing the aftermath of such violence, such as the victim’s bruising, cuts, broken bones, blood, or shattered glass, furniture, etc.

As Fort Lauderdale domestic violence defense lawyers, we can explain that this doesn’t mean the sentence itself is multiplied by 1.5 times. Rather, the number of points used to calculate the sentence will be multiplied by 1.5 times.

Every Florida felony crime is assigned a certain baseline number of points. The total number of points you end up with can be increased based on factors like the severity of the victim’s injuries, whether you had prior convictions, and other factors.

So let’s say a domestic violence charge is a third-degree felony. That’s a level 1 offense, for which one is assigned 4 points. If the victim’s injuries were moderate, that’s another 18 points. So that’s 22 points. If a child under 16 witnessed the offense, it’s multiplied by 1.5 times, so now, the offender has 33 points.

If a defendant scores less than 22 points and the offense was a third-degree felony, the judge will only sentence the defendant to prison if the judge finds he/she is a danger to the community. If you get more than 22 points but less than 44, you would be eligible for a non-state prison sanction - which can include time in county jail, on house arrest, probation, or credit for time served. If you get 44 points or more, you have “scored prison,” and you will serve a minimum mandatory length of time. You get this figure by taking the total number of points, subtracting 28, and then multiplying that figure by 0.75. The number you end up with is the number of months you’ll serve.

Note that even if you “score prison,” it’s possible the judge might decide to part from the guidelines. This is where having an experienced criminal defense lawyer can be very helpful.

In general, family court judges are hesitant to call child witnesses to testify against one parent or another when they’re talking about civil matters like child custody or parenting time. They don’t want kids to feel stuck in the middle.

In a criminal domestic violence case, prosecutors and judges may still be hesitant to call child witnesses. They’ll generally only do so if it’s absolutely necessary - which sometimes it is, given the inherent he-said-she-said nature of so many Florida domestic violence cases.

That said, there are special protections in place for child witnesses under 18, per F.S. 92.55. Courts will consider the age of the child, the nature of the offense/act, the degree of emotional trauma that will result from being in the defendant’s presence, and any other factor the court deems relevant. Special conditions may be imposed in light of these factors, such as allowing an individual to provide testimony behind closed doors (not physically in front of the jury) or doing so with a therapy animal.

A domestic violence allegation - and especially a conviction - is very likely to have a substantial impact on your child custody case. Matters relating to child custody and parenting time always prioritize the well-being and best interests of the child. If a child witnesses domestic violence, this is considered extremely damaging to their mental and emotional well-being - even if they are physically fine.

Family law judges may minimize or revoke the parenting time of the accused, or they may order any time spent must be supervised. They might also impose conditional visitation, contingent upon factors like regular attendance to counseling sessions or completion of a batterer’s intervention course.

Fighting your criminal charges may help the outcome of a child custody case - particularly if you can avoid conviction.

We should point out there is also precedent for alleging neglect and/or initiating state child protective action against the alleged victim for failure to protect the child from abuse or witnessing the abuse. This is a controversial approach, and not one that has been supported in Florida.

For instance, a state District Court of Appeal refused to maintain a petition of neglect filed by the Florida Department of Children and Family Services against a couple even though their kids had witnessed verbal abuse and alcohol abuse, and finding the mother’s flight to a domestic violence shelter on one occasion an inadequate basis to point to a “significant impairment” to the child’s physical/mental/emotional well-being to justify a charge of neglect.

In another case in 1995, Denson v. Dep. of Health & Rehabilitative Services, the court held that evidence of domestic violence in the home was not justification for removing the children from their mother’s custody.

If you are arrested for domestic violence in Broward County and there were children present when it happened, you will need a skilled legal representative to protect your rights and your future. We can help.

Call Fort Lauderdale Criminal Defense Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.