Posted by Nydia Streets of Streets Law in Florida Domestic Violence

In a recent appellate case, the court overturned a permanent injunction entered against a father concerning his son. In the case De Hoyos v. Bauerfeind, 1D19-581 (Fla. 1st DCA December 16, 2019), the mother brought the case on behalf of the parties’ child who alleged the father hit the child in the face on the way to school.

At a trial on the petition, the child’s therapist testified regarding the child’s statements to her about the incident. She stated the child told her he went back into the house to get his jacket and his father became irritated when he felt he took too long. Allegedly an exchange of words occurred, and the child stated the father hit him in the face with such force that the child’s head hit the window. The father denied this and stated he only placed his hand on the child’s shoulder or head. In any event, the father objected to the admissibility of the therapist’s statements because they were hearsay.

Under Florida law, hearsay is an out of court statement offered to prove the truth of the matter asserted. Generally, because it is difficult to authenticate what someone said outside of court, having a witness testify to what someone else said is generally forbidden unless the statements fit a hearsay exception. For purposes of admitting a child’s statements in a proceeding, Florida law requires that the source of information is trustworthy and: 1. The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability. In making its determination, the court may consider the mental and physical age and maturity of the child, the nature and duration of the abuse or offense, the relationship of the child to the offender, the reliability of the assertion, the reliability of the child victim, and any other factor deemed appropriate; and 2. The child either: a. Testifies; or b. Is unavailable as a witness, provided that there is other corroborative evidence of the abuse or offense. Unavailability 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). See § 90.803(23), Fla. Stat. (2014).

The father therefore appealed when an injunction was entered against him based on the child’s hearsay statements. Finding the requirements for admission of the child’s hearsay statements were not met, the appellate court reversed the injunction, holding “And the error was not harmless. The only evidence of abuse of the child by [the father] came from the child hearsay statements to the therapist and [the mother]. No witnesses to the alleged abuse testified. Neither Bauerfeind nor the child's therapist saw a mark on the child's face in the hours after the incident. And Bauerfeind never provided the photograph she claimed that she took of the child's bruise the next day. Because Bauerfeind did not provide competent, substantial evidence to support the injunction, the final judgment granting the injunction is REVERSED.”

Domestic violence injunctions between a parent and child severely restrict the parent’s access to a child. Therefore, it is important that these types of cases be handled with care. Scheduling a consultation with a Miami family law attorney may be the first step in understanding how to move forward if you are faced with a similar case.