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Habeas

Habeas

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Published by Theresa Martin

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Published by: Theresa Martin on Oct 19, 2008
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Fla.R.Civ.P.Title VJUDICIAL BRANCH Chapter 39PROCEEDINGS RELATING TO CHILDREN View Entire Chapter39.0139 Visitation or other contact; restrictions.--(3) PRESUMPTION OF DETRIMENT.--(a) A rebuttable presumption of detriment to a child is created when a parent orcaregiver:1. Has been the subject of a report to the child abuse hotline alleging sexualabuse of any child as defined in s. 39.01;2. Has been found guilty of, regardless of adjudication, or has entered a plea ofguilty or nolo contendere to, charges under the following statutes orsubstantially similar statutes of other jurisdictions:a. Section 787.04, relating to removing minors from the state or concealingminors contrary to court order;b. Section 794.011, relating to sexual battery;c. Section 798.02, relating to lewd and lascivious behavior;d. Chapter 800, relating to lewdness and indecent exposure;e. Section 826.04, relating to incest; orf. Chapter 827, relating to the abuse of children; or3. Has been determined by a court to be a sexual predator as defined in s. 775.21or has received a substantially similar designation under laws of anotherjurisdiction.(b) For purposes of this subsection, "substantially similar" has the same meaningas in s. 39.806(1)(d)2.(4) HEARINGS.--A person who meets any of the criteria set forth in paragraph(3)(a) may visit or have other contact with a child only after a hearing and anorder by the court that allows the visitation or other contact. At such a hearing:(a) The court must appoint an attorney ad litem or a guardian ad litem for thechild if one has not already been appointed. Any attorney ad litem or guardian adlitem appointed shall have special training in the dynamics of child sexual abuse.(b) The court may receive and rely upon any relevant and material evidencesubmitted, including written and oral reports, to the extent of its probativevalue in its effort to determine the action to be taken with regard to the child,even if these reports and evidence may not be competent in an adjudicatoryhearing.
 
(c) If the court finds the person proves by clear and convincing evidence thatthe safety, well-being, and physical, mental, and emotional health of the child isnot endangered by such visitation or other contact, the presumption in subsection(3) is rebutted and the court may allow visitation or other contact. The courtshall enter a written order specifying any conditions it finds necessary toprotect the child.(d) If the court finds the person did not rebut the presumption established insubsection (3), the court shall enter a written order prohibiting or restrictingvisitation or other contact with the child.(5) CONDITIONS.--Any visitation or other contact ordered under paragraph (4)(d)shall be:(a) Supervised by a person who has previously received special training in thedynamics of child sexual abuse; or(b) Conducted in a supervised visitation program, provided that the program hasan agreement with the court and a current affidavit of compliance on file with thechief judge of the circuit in which the program is located affirming that theprogram has agreed to comply with the minimum standards contained in theadministrative order issued by the Chief Justice of the Supreme Court on November17, 1999, and provided the program has a written agreement with the court and withthe department as described in s. 753.05 containing policies and guidelinesspecifically related to referrals involving child sexual abuse.(6) ADDITIONAL CONSIDERATIONS.--(a) If a party or participant, based on communication with the child or otherfirsthand knowledge, informs the court that a person is attempting to influencethe testimony of the child, the court shall immediately suspend visitation orother contact. The court shall then hold a hearing and determine whether it is inthe best interests of the child to prohibit or restrict visitation or othercontact.(b) If a child is in therapy as a result of any of the allegations or convictionscontained in paragraph (3)(a) and the child's therapist reports that thevisitation or other contact is impeding the child's therapeutic progress, thecourt shall convene a hearing within 7 business days to review the terms,conditions, or appropriateness of continued visitation or other contact.===============Florida ConstitutionARTICLE I - DECLARATION OF RIGHTSSECTION 9. Due process.--No person shall be deprived of life, liberty or propertywithout due process of law, or be twice put in jeopardy for the same offense, orbe compelled in any criminal matter to be a witness against oneself.SECTION 13. Habeas corpus.--The writ of habeas corpus shall be grantable ofright, freely and without cost. It shall be returnable without delay, and shallnever be suspended unless, in case of rebellion or invasion, suspension isessential to the public safety.===============Title XLIIIDOMESTIC RELATIONS Chapter 742
 
DETERMINATION OF PARENTAGE View Entire Chapter742.10 Establishment of paternity for children born out of wedlock.--(1) This chapter provides the primary jurisdiction and procedures for thedetermination of paternity for children born out of wedlock. When theestablishment of paternity has been raised and determined within an adjudicatoryhearing brought under the statutes governing inheritance, or dependency underworkers' compensation or similar compensation programs, or when an affidavitacknowledging paternity or a stipulation of paternity is executed by both partiesand filed with the clerk of the court, or when an affidavit, a notarized voluntaryacknowledgment of paternity, or a voluntary acknowledgment of paternity that iswitnessed by two individuals and signed under penalty of perjury as provided forin s. 382.013 or s. 382.016 is executed by both parties, or when paternity isadjudicated by the Department of Revenue as provided in s. 409.256, suchadjudication, affidavit, or acknowledgment constitutes the establishment ofpaternity for purposes of this chapter. If no adjudicatory proceeding was held, anotarized voluntary acknowledgment of paternity or voluntary acknowledgment ofpaternity that is witnessed by two individuals and signed under penalty of perjuryas specified by s. 92.525(2) shall create a rebuttable presumption, as defined bys. 90.304, of paternity and is subject to the right of any signatory to rescindthe acknowledgment within 60 days after the date the acknowledgment was signed orthe date of an administrative or judicial proceeding relating to the child,including a proceeding to establish a support order, in which the signatory is aparty, whichever is earlier. Both parents must provide their social securitynumbers on any acknowledgment of paternity, consent affidavit, or stipulation ofpaternity. Except for affidavits under seal pursuant to ss. 382.015 and 382.016,the Office of Vital Statistics shall provide certified copies of affidavits to theTitle IV-D agency upon request.(2) Pursuant to the federal Personal Responsibility and Work OpportunityReconciliation Act of 1996, each party is required to provide his or her socialsecurity number in accordance with this section. Disclosure of social securitynumbers obtained through this requirement shall be limited to the purpose ofadministration of the Title IV-D program for child support enforcement.(3) The department shall adopt rules which establish the information which mustbe provided to an individual prior to execution of an affidavit or voluntaryacknowledgment of paternity. The information shall explain the alternatives to,the legal consequences of, and the rights, including, if one parent is a minor,any rights afforded due to minority status, and responsibilities that arise fromacknowledging paternity.(4) After the 60-day period referred to in subsection (1), a signed voluntaryacknowledgment of paternity shall constitute an establishment of paternity and maybe challenged in court only on the basis of fraud, duress, or material mistake offact, with the burden of proof upon the challenger, and under which the legalresponsibilities, including child support obligations of any signatory arisingfrom the acknowledgment may not be suspended during the challenge, except upon afinding of good cause by the court.(5) Judicial or administrative proceedings are not required or permitted toratify an unchallenged acknowledgment of paternity.===============Title VICIVIL PRACTICE AND PROCEDURE Chapter 61

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