Posted by Nydia Streets of Streets Law in Florida Domestic Violence
When a child accuses someone of sexual abuse, an injunction for protection against sexual violence may be entered in Florida. However, there are strict evidentiary requirements for such an injunction to be entered, and this was an issue in the case Castro v. Gutierrez, 3D23-2256 (Fla. 3d DCA April 16. 2025).
A mother sought an injunction against sexual violence on behalf of her ten-year-old daughter against the father of the child. This was based on the child allegedly disclosing to the mother that she had been “subjected to inappropriate sexual conduct by the Father.” The mother did not witness the alleged abuse, presented no eyewitness testimony and presented no physical evidence. A permanent injunction was entered and the father’s motion for rehearing was denied, leading him to appeal.
The appellate court reversed the injunction, holding “The Mother did not meet the statutory requirements to request a permanent injunction on behalf of D.C. against the Father pursuant to section 784.046(4)(a)(1), Florida Statutes (2023), which reads:
With respect to a minor child who is living at home, the parent or guardian seeking the protective injunction on behalf of the minor child must: (1) Have been an eyewitness to or have direct physical evidence or affidavits from eyewitnesses of, the specific facts and circumstances that form the basis upon which relief is sought, if the party against whom the protective injunction is sought is also a parent, stepparent, or legal guardian of the minor child[.]
Id.”
While the mother asserted the child’s statements about the abuse fell under the hearsay exception of § 90.803(23), Fla. Stat., the appellate court rejected this argument, noting “In order to qualify under the hearsay exception, the child must either testify, which D.C. did not, or the child ‘[i]s unavailable as a witness, provided that there is other corroborative evidence of the abuse or offense.’ § 90.803(23), Fla. Stat. (2023). The statute specifies, ‘[u]navailability shall include a finding by the court that the child's participation in the trial or proceeding would result in a substantial likelihood of severe emotional or mental harm, in addition to findings pursuant to s. 90.804(1).’ Id. As the Mother conceded on appeal, such a finding was not made by the trial court and is fatal to the hearsay exception. Additionally, even if the trial court were to have found that D.C. was unavailable as a witness, the statute still requires ‘corroborative evidence of the abuse or offense.’ Id. During the hearing, the Mother testified that ‘it was just verbally that [D.C] mentioned [the abuse].’ When the trial court asked the Mother, ‘[d]o you have any other evidence or anything else that you want to tell the Court in relation to [D.C]?’ The Mother responded, ‘that’s all I have.’”
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