Fla. Fam. L. R. P. 12.650

RULE 12.650

OVERRIDE OF FAMILY VIOLENCE INDICATOR

(a) Application. This rule shall apply only to proceedings

instituted pursuant to 42 U.S.C. § 653, which authorizes a state

court to override a family violence indicator and release information

from the Federal Parent Locator Service notwithstanding the family

violence indicator.

(b) Definitions.

(1) “Authorized person” means a person as defined in

42 U.S.C. § 653(c) and § 663(d)(2). It includes any agent or attorney

of the Title IV-D agency of this or any other state, the court that has

authority to issue an order or to serve as the initiating court in an

action to seek an order against a parent or other person obligated to

pay child support, or any agent of such court, the parent or other

person entitled to receive child support, legal guardian, attorney, or

agent of a child (other than a child receiving assistance under 42

U.S.C. §§ 601 et seq.), and any state agency that administers a

child welfare, family preservation, or foster care program. It also

includes any agent or attorney of this or any other state who has

the duty or authority under the law of such state to enforce a child

custody or visitation determination or order establishing a

parenting plan; the court that has jurisdiction to make or enforce

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such a child custody or visitation determination or order

establishing a parenting plan, or any agent of such court; and any

agent or attorney of the United States, or of a state, who has the

duty or authority to investigate, enforce, or bring a prosecution with

respect to the unlawful taking or restraint of a child.

(2) “Authorized purpose” means a purpose as defined in

42 U.S.C. § 653(a)(2) and § 663(b). It includes establishing

parentage, establishing, setting the amount of, modifying, or

enforcing child support obligations, or making or enforcing child

custody or visitation orders or orders establishing parenting plans.

It also includes enforcing any state or federal law with respect to the

unlawful taking or restraint of a child.

(3) “Department” means the Florida Department of

Revenue as the state’s Title IV-D agency.

(4) “Family violence indicator” means a notation in the

Federal Parent Locator Service that has been placed on a record

when a state has reasonable evidence of domestic violence or child

abuse as defined by that state.

(5) “Federal Parent Locator Service” means the

information service established by 42 U.S.C. § 653.

(6) “Petitioner” means an authorized person or an

individual on whose behalf an authorized person has requested a

Federal Parent Locator Service search and who has been notified

that the information from the Federal Parent Locator Service cannot

be released because of a family violence indicator.

(7) “Respondent” means the individual whose record at

the Federal Parent Locator Service includes a family violence

indicator and ordinarily does not want his or her location

information disclosed. The department, the Florida Department of

Law Enforcement, or the state entity that placed the family violence

indicator on the record may be required to respond to an order to

show cause; however, they are not considered respondents in these

proceedings.

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(c) Initiating Proceedings. When an authorized person has

attempted to obtain information from the Federal Parent Locator

Service and has been notified by the Federal Parent Locator Service

that it has location information but cannot disclose the information

because a family violence indicator has been placed on the record, a

petitioner may institute an action to override the family violence

indicator. An action is instituted by filing a sworn complaint in the

circuit court. The complaint must:

(1) allege that the petitioner is an authorized person or

an authorized person has requested information on his or her

behalf from the Federal Parent Locator Service and must include

the factual basis for the allegation;

(2) allege that the petitioner is requesting the

information for an authorized purpose and state the purpose for

which the information is sought;

(3) include the social security number, sex, race,

current address, and date of birth of the petitioner and any alias or

prior name used by the petitioner;

(4) include the social security number and date of birth

of the respondent and any children in common between the

petitioner and the respondent, if known;

(5) disclose any prior litigation between the petitioner

and the respondent, if known;

(6) disclose whether the petitioner has been arrested

for any felony or misdemeanor in this or any other state and the

disposition of the arrest; and

(7) include notice from the Federal Parent Locator

Service that location information on the respondent cannot be

released because of a family violence indicator.

(d) Initial Court Review. When a complaint is filed, the

court shall review the complaint ex parte for legal sufficiency to

determine that it is from an authorized person or an individual on

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whose behalf an authorized person requested information from the

Federal Parent Locator Service, is for an authorized purpose, and

includes the information required in subdivision (c). If the

complaint is legally sufficient, the court shall order the department

to request the information from the Federal Parent Locator Service

and order the department to keep any information received from the

Federal Parent Locator Service in its original sealed envelope and

provide it to the court within 45 days in the manner described in

subdivision

(e) Receipt of Information. When sealed information from

the Federal Parent Locator Service is obtained, the department shall

file the information with the court. The information from the Federal

Parent Locator Service shall remain in its original sealed envelope

and the outside of the envelope shall be clearly labeled with the

case number and the words “sealed information from Federal

Parent Locator Service.” The clerk of the court shall ensure that the

sealed information from the Federal Parent Locator Service is not

disclosed to any person other than those specifically authorized by

the court. Court files in these proceedings shall be separately

secured in the Clerk’s office in accordance with the requirements of

subdivision (i).

(f) Review of Information by the Court. The court shall

conduct an in-camera examination of the contents of the sealed

envelope from the Federal Parent Locator Service.

(1) If the information from the sealed envelope does not

include an address for the respondent or an address for the

respondent’s employer, the petitioner and the department will be

notified that no information is available and no further action will

be taken. The name of the state that placed the family violence

indicator on the record will not be released.

(2) If the information from the sealed envelope includes

an address for the respondent or the respondent’s employer, the

court shall issue an order to show cause to the respondent, the

department, the Florida Department of Law Enforcement (FDLE),

and the state entity that placed the family violence indicator on the

record. The order to show cause shall

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(A) give the respondent at least 45 days to show

cause why the location information should not be released to the

petitioner;

(B) clearly state that the failure to respond may

result in disclosure of the respondent’s location information;

(C) direct the parties to file with the court all

documentary evidence which supports their respective positions,

including any prior court orders;

(D) direct the department to search its child

support enforcement statewide automated system and case file for

the presence of a Florida family violence indicator, for any other

information in that system or file that is relevant to the issue of

whether release of the respondent’s location information to the

petitioner could be harmful to the respondent or the child, and

whether an application for good cause under section 414.32,

Florida Statutes, is pending or has been granted and if so, file

documentation with the court within 30 days;

(E) unless the FDLE is the petitioner, direct the

FDLE to conduct a search of its Florida criminal history records on

the petitioner, including information from the Domestic and Repeat

Violence Injunction Statewide Verification system, and file it with

the court within 30 days; and

(F) set a hearing date within 60 days.

(3) The order to show cause shall be served as follows:

(A) By regular mail and by certified mail, return

receipt requested, to the respondent. If a receipt is not returned or a

responsive pleading is not filed, the court may extend the time for

response and provide for personal service on the respondent. The

petitioner also may request that the respondent be initially served

by personal service, and if so, the petitioner shall pay into the

registry of the court the cost of effecting personal service.

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(B) By certified mail, return receipt requested, to

the department, the FDLE, and the state entity that placed the

family violence indicator on the record.

(C) A copy of the order to show cause shall be

provided to the petitioner. However, the copy shall not include any

information that may identify the respondent’s location, including

but not limited to the name or address of the state entity that

placed the family violence indicator on the record.

(g) Providing Information to Court.

(1) Information from Department. The department shall

submit the information it obtains in response to the order to show

cause by filing the information with the court in a sealed envelope.

The outside of the envelope shall be clearly labeled with the case

number and the words “sealed information from the Department of

Revenue.” Any information that may reveal the location of the

respondent should be distinctly noted so that this information is

not inadvertently disclosed.

(2) Information from FDLE. When it has searched its

records in response to the order to show cause, the FDLE shall file

a report with the court. The report shall include the case number

and results of the search of its records.

(h) Hearing on Order to Show Cause.

(1) At the hearing on the order to show cause, the court

shall determine whether release of the respondent’s location

information to the petitioner could be harmful to the parent or the

child. The petitioner has the burden of proof to show that release of

information to the petitioner would not be harmful to the parent or

the child.

(A) If the court finds that release of the location

information could be harmful, the information shall not be released

and the petition shall be denied.

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(B) If the court finds that release of the location

information would not be harmful, the court shall disclose the

location information to the petitioner. The disclosure of the location

information shall be made only to the petitioner, and the court shall

require that the petitioner not disclose the information to other

persons. The disclosure of location information to the petitioner in

these proceedings does not entitle the petitioner to future disclosure

of the respondent’s location information.

(C) The court may deny the request for location

information if the respondent agrees to designate a third party for

service of process for proceedings between the parties.

(2) Notwithstanding the provisions of Florida Rule of

General Practice and Judicial Administration 2.530, the court may

conduct a hearing on the order to show cause by means of

communications equipment without consent of the parties and

without a limitation on the time of the hearing. The

communications equipment shall be configured to ensure that the

location of the respondent is not disclosed.

(i) Confidentiality. The clerk of the court shall ensure that

all court records in these proceedings are protected according to the

requirements of this rule. Court records in these proceedings shall

be segregated and secured so that information is not disclosed

inadvertently from the court file. All court records in these

proceedings are confidential and are not available for public

inspection until the court issues a final judgment in the case. After

the court issues a final judgment in the case, the location

information from the Federal Parent Locator Service and any other

information that may lead to disclosure of the respondent’s

location, including but not limited to the respondent’s address,

employment information, the name or address of the state that

placed the family violence indicator on the record, and the

telephone number of the respondent, shall remain confidential and

not available for public inspection unless otherwise ordered by the

court. After the court issues a final judgment in the case, the court

shall release nonconfidential information upon motion.

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This rule implements the requirements of 42 U.S.C. § 653,

providing for a state court to override a family violence indicator on

a record at the Federal Parent Locator Service. It does not apply to

any other proceeding involving family violence or any other court

records. The limitations on access to the Federal Parent Locator

Service and this override process are governed by federal law.

Proceedings under this rule would arise when an authorized

person has attempted to obtain information from the Federal Parent

Locator Service but has been notified that the information cannot

be released because of a family violence indicator. For example, a

petitioner may be a noncustodial parent who has attempted to serve

the custodial parent in an action to enforce visitation but was

unable to effect service of process on the custodial parent. The

court may have authorized access to the Federal Parent Locator

Service in order to locate the custodial parent for purposes of

service of process. If the report from the Federal Parent Locator

Service indicates that the information cannot be released because of

a family violence indicator, the noncustodial parent would be

authorized to petition the court pursuant to this rule to override the

family violence indicator.

The purpose of these proceedings is to determine whether to

release location information from the Federal Parent Locator Service

notwithstanding the family violence indicator. The court must

determine whether release of the location information to the

petitioner would be harmful to the respondent. If the court

determines that release of the location information would not be

harmful, the information may be released to the petitioner. If the

respondent agrees to designate a third party for service of process,

the court may deny the request for location information. In these

circumstances, the designation of a third party for service of

process is procedural only and does not provide a separate basis for

jurisdiction over the respondent.

The court must use care to ensure that information from the

Federal Parent Locator Service or other location information in the

court record is not inadvertently released to the petitioner, thus

defeating any interest of the respondent in maintaining

nondisclosure.

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The name of the state that placed the family violence indicator

on the record may assist the petitioner in obtaining access to the

respondent. If the name of the state that placed the family violence

indicator on the record is supplied from the Federal Parent Locator

Service, but an address for the respondent is not provided, the

court should not release the name of the state to the petitioner.

Disclosure of this information could assist the petitioner in locating

the respondent, may place the respondent in danger, and does not

give the respondent an opportunity to be heard by the court prior to

release of the information.

Because the interest of the respondent is to keep location

information from the petitioner, having both the petitioner and

respondent appear at a hearing at the same time may also result in

the petitioner obtaining location information about the respondent.

If a hearing must be held where both the petitioner and respondent

are present, the court should use whatever security measures are

available to prevent inadvertent disclosure of the respondent’s

location information.

Each state establishes its own criteria, consistent with federal

law, for placing a family violence indicator on a record. Some states

require a judicial determination of domestic violence or child abuse

before a family violence indicator is placed on a record. The criteria

for a family violence indicator in Florida are in section 61.1825,

Florida Statutes.

The records in these proceedings are confidential under 42

U.S.C. §§ 653 and 654. Florida Rule of Judicial Administration

2.051 [renumbered as 2.420 in 2006] also exempts from public

disclosure any records made confidential by federal law.

2008 Amendment. Chapter 2008-61, Laws of Florida,

effective October 1, 2008, eliminated such terms as “custodial

parent,” “noncustodial parent,” and “visitation” from Chapter 61,

Florida Statutes. Instead, the court adopts or establishes a

parenting plan that includes, among other things, a time-sharing

schedule for the minor children. These statutory changes are

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reflected in the amendments to the definitions in this rule. However,

because 42 U.S.C. § 653 includes the terms “custody” and

“visitation,” these terms have not been excised from the remainder

of the rule.