Posted by Nydia Streets of Streets Law in Florida Child Custody
Child custody rights can be affected by a Florida domestic violence injunction. When a domestic violence injunction is entered on behalf of a child, the parent against whom the injunction was entered may have limited or no contact with the child. What does it take to dissolve this injunction? This was an issue in the case Sheermohamed v. Tozzi, 4D2022-2792 (Fla. 4th DCA October 18, 2023).
An injunction was entered against the father in this case resulting in him receiving only supervised visits with his then 3-year old child. When the child was 9 years old, the mother filed another injunction alleging the father had another domestic violence petition filed against him by his then-girlfriend, that the father had not completed therapy as previously ordered, and that the father refused to pay for a visitation supervisor, instead relying on his then-girlfriend to supervise his visits. The court entered a permanent injunction against the father which cancelled his supervised visits.
The father filed two motions to dissolve the injunction which were unsuccessful. When the child was 15, the father filed his third motion to dissolve the injunction. At a hearing on this motion, the father had a psychiatrist testify that the father posed no threat to the child and did not exhibit any behaviors which showed he was a threat to himself or anyone else. The psychiatrist based this on a 90-minute meeting with the father. On cross examination, the psychiatrist admitted he was not aware the father was arrested for battery against his then girlfriend, or that he was on probation for stalking and threatening to kill the same girlfriend. He admitted this information would have been necessary to make a complete assessment of the father. The father’s testimony focused on the fact that he had never abused the child or been arrested for doing so. The mother testified the father violated the injunction many times by coming to her house and leaving cards and notes for the child, and setting up websites directed to the child. Based on this testimony, the trial court dissolved the injunction and ordered the father’s supervised visits to resume. The mother appealed.
The appellate court reversed, holding “Here, the father failed to present competent, substantial evidence sufficient to successfully carry the burden of changed circumstances. Other than the father’s self-serving testimony that he ‘never intended to act on’ his numerous threats to kill or perpetrate violence, the father relied on only the uninformed testimony of the psychiatrist who performed the 2010 psychological examination. The psychiatrist, without any knowledge of the full scope of the father’s post-injunction history, and instead relying on only a ninety-minute interview, was not a competent witness upon whom the circuit court could have relied in granting the father’s motions.”
The court further held “In contrast to the father, the mother provided competent, substantial evidence to demonstrate she reasonably maintained a continuing fear that the child could become a victim of domestic violence if the father was permitted to restart supervised timesharing. The mother presented undisputed evidence that the father, post-injunction, had been arrested for battery against his then-girlfriend, who had been entrusted to supervise the father’s visits with the child, and two years later made 238 violent threats to his then ex-girlfriend. The mother further presented undisputed evidence that the father had failed to complete his court-ordered therapy, and had violated the injunctions protecting her and the child by setting up websites asking the child to contact him and coming to her property and placing cards and a telephone with a note asking the child to contact him. We further agree with the mother’s argument that the circuit court, rather than relying upon the psychiatrist called by the father, instead should have granted the mother’s motion to require the father to undergo a neutral psychological examination before the circuit court determined whether to dissolve the injunction and restart supervised timesharing.”
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