Orlando Mother’s Efforts to See Daughter Did Not Amount to Stalking, Court Says

A woman’s efforts to maintain a relationship with her daughter after she and her wife separated led an Orange County court to issue an order of protection for the daughter to stop the mother from stalking her. The Fifith District Court of Appeal threw out that injunction, though, ruling that the mother’s infrequent and non-threatening efforts to contact the daughter could not amount to stalking as defined by the Florida Statutes. The case highlights the importance of having substantial evidence specifically targeted to the law’s definition in order to prove stalking, as well as the often difficult position a non-biological parent in a same-sex couple faces when it comes to maintaining a relationship with her child after the marriage ends.

The parent accused of stalking was D.L., who had been in a relationship with C.P. for five years when C.P. became pregnant and had a daughter in the fall of 2002. Along the way, the couple entered into a civil union in Vermont in the summer of 2002 and married in Massachusetts in 2004. In 2007, the couple separated. D.L. continued to visit with the daughter for seven years until, on September 1, 2014, C.P. informed D.L. that the girl did not want to see her anymore.

D.L. made a few efforts to contact the daughter. Two days after her conversation with C.P., D.L. texted the daughter to confirm C.P.’s statement’s accuracy and stating that she would “honor your wishes” if the girl truly wanted to cease contact. About four weeks after that, D.L. again texted the girl a single time to inquire if she was ready to see her. D.L. also wrote the daughter a letter that allegedly used “feigned child’s handwriting,” which C.P. destroyed before the daughter saw it. D.L. visited the daughter’s home once but left without being allowed to see the girl, and she also launched an Internet “crowdfunding” page to obtain financial assistance with the legal costs of seeking custody and timesharing.

Based on these actions, C.P. sought, and the trial court awarded, an injunction of protection against stalking that barred D.L. from making future contact with the daughter. D.L., who obtained legal representation both from a local attorney in Orlando and from Lambda Legal Education and Defense Fund, Inc., appealed.

The Fifth District sided with D.L. The problem with the injunction was that the Florida Statute that governs what is (and is not) stalking defines stalking in a very specific way, and the actions D.L. undertook did not meet the law’s definition. Under Section 784.048(2) of the Florida Statutes, to stalk another person, you must either follow, harass, or cyberstalk the victim. C.P. never alleged, and the trial court never found, that D.L. followed the daughter or engaged in the sort of online conduct that would amount to cyberstalking.

That left harassment. Section 784.048 also has a specific definition for harassment, which requires, among other things, that the victim suffer “substantial emotional distress” and that the conduct serve “no legitimate purpose.” In this case, the daughter was completely unaware of the letter, the crowdfunding page, and D.L.’s visit to the home. The only actions she knew about were the two texts, which the appeals court ruled served a valid purpose, given the family relationship D.L. shared with the girl. C.P. also never brought evidence before the trial court that the text messages caused, or were likely to cause, severe emotional distress to the daughter. This meant that the two texts could not constitute stalking under the statute, and the issuance of the injunction was improper.

With the change in the law in Florida regarding same-sex marriage, changes in the law will also follow when it comes to dealing with custody and timesharing issues regarding the children of same-sex couples who separate. As other recent cases have shown, it is vitally important for the non-biological parent to take steps to ensure his or her status as a legal parent, in order to protect that relationship should the couple’s relationship break down. For thoughtful advice and determined advocacy in your timesharing and custody case, talk to the South Florida child custody attorneys at Sandy T. Fox, P.A. Our attorneys can help you protect your relationship with your child.

More blog posts:

Same-Sex Couples, Custody Rights, and Timesharing in Florida, Fort Lauderdale Divorce Lawyer Blog, Oct. 21, 2015

Groundbreaking US Supreme Court Case Clarifies Status for Same-Sex Couples Seeking to Divorce in Florida, Fort Lauderdale Divorce Lawyer Blog, July 8, 2015