Will I Lose Custody of My Kids for a Florida Domestic Violence Charge or Conviction?

Florida domestic violence arrests and convictions can have devastating consequences for defendants and families - sometimes far beyond what is outlined in criminal statutes. That can absolutely include loss or restriction of child custody, parental responsibility, and parenting time.

This is true even if your children weren’t present or involved when it happened. And if the Florida Department of Children and Families isn’t already involved - they likely will be. The agency has a whole division - the Office of Domestic Violence - dedicated to “intervening and preventing domestic violence and supporting survivors and their families.” They collaborate with partners in court administration, the state attorney’s office, law enforcement, and non-profit organizations. The agency routinely gets involved when immediate family members/caregivers of a minor child are involved in an incident of domestic violence.

The Broward domestic violence criminal defense lawyers at The Ansara Law Firm are well aware of the potential child custody implications a criminal arrest and/or conviction can have for our clients. We’ll do everything in our power on the criminal justice side of things to mitigate those impacts.

To be clear: The criminal case is entirely separate from the DCF investigation or any pending family court matters. Each system has its own goals, proof standards, and compliance methods. But there’s undoubtedly a degree of intersectionality.

For example, evidence gleaned by police in a criminal domestic violence investigation can be accessed and relied upon by DCF social workers tasked with ensuring the well-being of any children in the home. DCF workers might be alerted to a possible child safety issue by law enforcement, triggering them to open a case file on that family. Family court judges will review evidence from both the criminal case as well as any DCF investigations.

That doesn’t mean you’ll automatically lose child custody or unsupervised parenting time. But it would be unusual if there wasn’t some action taken. An incident of domestic violence raises the question of whether children in that environment are safe in the care or presence of someone accused or convicted of a violent crime.

Whereas Florida criminal courts are focused on assessing violations of state criminal law and protection orders, family courts prioritize the safety and well-being of the child above all else. Both parents are presumed to be equally capable of and responsible for the care and protection of their children. A domestic violence arrest or conviction can challenge that presumption.

Domestic violence arrests, injunctions, and convictions are all very likely to be considered by Florida family courts. That’s because such actions are considered highly relevant to the safety and well-being of the child - the family court’s No. 1 priority.

Following a domestic violence arrest or injunction, a family court judge may be asked to grant an emergency custody order. Per F.S. 61.534, emergency custody orders can be issued when a child is in imminent danger of suffering serious physical harm and/or being removed from the state. Judges can issue emergency custody orders in one of two ways:

• An ex parte motion, to be heard by the next judicial day, and considering only one party’s side. If granted, another hearing will be set for both parties to be heard at a later time.
• As a regular motion that calls for both parties notified and given the opportunity to be present and provide evidence to support their position.

Florida lawmakers have created several rebuttable presumptions against parents convicted of domestic violence.

For example, there is a rebuttable presumption against shared parental responsibility/parenting time when a parent has been convicted of first-degree misdemeanor domestic violence in F.S. 61.13(2)(c)(2). (Parental responsibility means control over things like the child’s healthcare, education, extracurriculars, etc.). This stacks the cards against you in family proceedings. The statute creates the presumption that entrusting a parent convicted of domestic violence with parental responsibility would be detrimental to the child. However, it does not mean you will forever and completely lose parenting time with your child. You can rebut that presumption with clear and convincing evidence to the contrary.

Similarly, if you’re convicted of felony domestic violence, Florida law creates a rebuttable presumption that it’s not in the child’s best interest for you to share custody. The onus is on you/the defendant to prove it’s not dangerous or harmful for the child to be in your care/control.

If the presumption isn’t rebutted by the parent who has been convicted of domestic violence, their parental rights - including decision-making authority, child custody, and time-sharing - may be revoked or restricted. If defendants are allowed to continue seeing their child, it may only be with the presence/oversight of a third-party.

Domestic violence injunctions (regardless of arrest or criminal conviction) are to be considered by the court as evidence of detriment to the child.

Even where child custody/parenting time is revoked or restricted, courts will sometimes pave the way to reunification with certain requirements, such as: Completing batterer’s intervention courses, staying drug-free and alcohol-free, securing and maintaining a job and suitable residence, refraining from any future crimes (particularly those involving violence), etc.

Note: Revocation of child custody, parental responsibility, or parenting time does NOT excuse that parent from their ongoing financial support obligations. Falling behind on child support isn’t the sole factor on which family courts decide custody and parenting time matters. However, it’s unlikely to help your case if your time has already been revoked or restricted due to domestic violence allegations or convictions.

As South Florida domestic violence criminal defense attorneys, we understand the domino effect that these charges can have when it comes to your parental rights and your relationship with your kids. One of the best ways you can protect your parental rights is to prioritize a better outcome in the pending criminal case. If you can avoid conviction - particularly on the most serious charges - your chances of minimizing the impact to the child custody and/or parenting time arrangements are much-improved.

If you are accused of violating a domestic violence injunction in Broward, Palm Beach, or Miami-Dade Counties, contact The Ansara Law Firm today for your free initial consultation at (954) 761-4011.