North FL’s Highest Court Expands Definition of Familial or Custodial Authority

April 10, 2026 Don Pumphrey, Jr. Criminal Defense Social Share

Florida’s 1st District Court of Appeal expanded the definition of the term “familial or custodial authority” from sexual battery purposes – finding that a man who previously was married to the victim’s mother qualified, even though he did not actively live with the victim.

CASE: Coleman v. State, 485 So.2d 1342 (Fla. 1st DCA 1986)

Charge(s): Sexual battery by a person in familial or custodial authority

Outcome: Conviction AFFIRMED, as the defendant was in a position of custodial authority to the victim at the time of the offense.

Sexual Battery by a Person in Familial or Custodial Authority

In Florida, sexual battery by a person in a position of familial or custodial authority (Fla. Stat. 794.011(8)) is an extremely serious felony offense. For someone to be guilty, the State must prove all of the following beyond a reasonable doubt:

• The defendant engaged in an act that constituted sexual battery on the victim
• At the time, the victim was a minor (e.g. under the age of 18)
• At the time, the defendant was in a position of familial or custodial authority to the victim

Sexual battery by a person in familial or custodial authority is a first-degree PBL felony, carrying a potential sentence of up to life in prison and thousands of dollars in fines. To learn more about first-degree PBL (punishable by life) felonies in Florida, click here.

Moreover, if a defendant is found guilty of sexual battery by a person in a position of familial or custodial authority, they will be forced to register as a sexual offender and/or predator for the rest of their life. For more on this, click here.

There are two notable things to consider about Florida’s sexual battery by a person in familial or custodial authority statute. The first of these is that if the victim is between the ages of 12 and 17, the “step up” in severity of charges is especially notable. State v. Rife, 733 So.2d 541 (Fla. 5th DCA 1999)

If someone was in a position of familial or custodial authority at the time of the offense, this is an AUTOMATIC ENHANCEMENT under Florida law to a PBL felony – regardless of if the victim “willingly participated” (distinct from legal consent, which cannot be given). 

In the event that the defendant was not in a position of familial/custodial authority, more likely charges would include:

• Simple sexual battery (if the victim resisted/did not willingly participate) – a first-degree felony punishable by up to 30 years in prison and a $10,000 fine (if the victim is over the age of 12)
• Lewd or lascivious battery (if the victim willingly participated), which is a second-degree felony punishable by up to 15 years in prison and a $10,000 fine
• Unlawful sexual activity with certain minors (if the defendant is 24 or older and victim is 16 or 17), a second-degree felony punishable by up to 15 years in prison and a $10,000 fine

Note: Though “willing participation” of a victim cannot defeat a sexual battery by a person in familial or custodial authority charge, it can provide a basis (in RARE cases) for a downward departure sentence (e.g. less severe than the CPC scoresheet guidelines recommend). To learn more, click here.

Because a defendant faces less time behind bars if they are not legally designated as someone in a position of familial/custodial authority, someone charged under the law may move in the form of a pretrial motion to dismiss and/or motion for a judgment of acquittal, arguing that they were not in a position of familial/custodial authority at the time of the alleged offense.

If the trial judge hears such an argument, they have a few options – which include:

• Deny the motion entirely, allowing the sexual battery by a person in familial or custodial authority charge to stick
• Partially grant the motion, reducing the charge to simple sexual battery (e.g. without the familial/custodial enhancement), lewd or lascivious battery, or unlawful sexual activity with certain minors (depending on the facts of the case)
• Grant the motion and dismiss the charge entirely if no reasonable jury could conclude that the conduct occurred at all (EXTREMELY rare in these cases)

Important: The above is only relevant if the alleged victim was 12 or older. If the alleged victim was younger than 12, any act involving sexual penetration or union is automatically considered capital sexual battery (if the defendant was an adult). For more, click here.

In the event that a trial judge DENIES a motion to dismiss/MJOA request in a sexual battery by a person in familial or custodial authority case and the defendant is CONVICTED, they are likely to appeal to the DCA (District Court of Appeal) that has jurisdiction over the trial court.

There, the defendant/appellant will almost certainly RENEW their argument that they were not in a position of familial or custodial authority at the time of the offense (in the event that it was argued at trial). The District Court of Appeal has a few options:

• Reverse the defendant’s conviction(s) and release them from custody (if they find the trial judge should’ve dismissed the charges entirely), not simply reduce them
• Enter convictions for a lesser charge in the defendant’s case (e.g. simple sexual battery or lewd or lascivious battery) and order a resentencing but not a new trial
• Affirm the defendant’s conviction(s), finding they were indeed in a position of familial or custodial authority at the time of the offense(s)

But when is someone actually in a position of familial or custodial authority under Florida law? This term is not defined in the statute – so Florida’s courts have spent decades interpreting it. 

In one major case heard by Florida’s 1st District Court of Appeal (Tallahassee and North FL’s highest court), a defendant argued he was not in a position of familial or custodial authority to the 14-year-old victim at the time he had sex with her. When he moved to dismiss the charge at trial, however, the judge DENIED this request – and he was convicted.

On appeal to the 1st DCA, the defendant reiterated his argument that he was improperly charged under the familial/custodial authority statute (leading to him receiving a lengthier prison term). However, the 1st DCA disagreed – and AFFIRMED his sexual battery by a person in familial or custodial authority conviction.

Let’s take a look at that key case – Coleman v. State, 485 So.2d 1342 (Fla. 1st DCA 1986) – and discuss what it means for those charged with (or those who know someone charged with) sexual battery by a person in familial or custodial authority in Florida.

KEY CASE: Coleman v. State, 485 So.2d 1342 (Fla. 1st DCA 1986) 

In Coleman, the defendant (Coleman) was arrested and charged with sexual battery by a person in a position of familial or custodial authority. At trial, the following facts were revealed:

• The offense allegedly occurred in 1983
• Coleman was previously married to the victim’s mother from 1971 to 1977
• They divorced and did not remarry – however, they reunited in 1978 and lived together for a period of time
• In 1983, Coleman moved out and spent a substantial amount of time working out of the state with a seismograph crew
• The alleged sexual battery took place when he was visiting the residence after returning from work

Coleman moved to dismiss the sexual battery by a person in a position of familial or custodial authority at trial, arguing that he was not covered under the statute. Coleman argued:

• He was not the natural father nor the stepfather of the victim
• He did not primarily reside in the home of the victim at the time
• Florida’s accessory after-the-fact statute (Fla. Stat. 777.03) should be used to assess the scope of the sexual battery by familial/custodial authority statute
• That statute made exceptions for individuals who were “parent or grandparent, child or grandchild, brother or sister, by consanguinity or affinity to the offender”
• Because he was not any of these positions, he should not have been considered a person who had familial/custodial authority over the victim

However, the 1st DCA REJECTED Coleman’s argument and affirmed his conviction. The 1st DCA read the sexual battery by a person in a position of familial or custodial authority statute more broadly than the accessory statute – and found Coleman’s effort to “narrow” the former unconvincing:

“We decline to construe the two statutes in pari materia along the lines appellant urges us to adopt. We consider that it was the legislature’s intent, in drafting the above language in section 777.03, to limit the defense to a very narrow class of persons. The same intent is not evidenced by the language employed in section 794.011(4)(e). On the contrary, we regard the legislature to have intended, by its use of the words, “familial or custodial”, to include within the statute’s proscriptions any person maintaining a close relationship with children of the ages specified in the statute, and who lived in the same household with such children. Familial is defined as “of, involving, or common to a family.” Webster’s New World Dictionary (2d college ed. 1980). Family is, among other things, defined as “all the people living in the same house; household….” Id. Custodial is defined as the adjective “of custody or custodians”, and custody in turn is defined as “a guarding or keeping safe; care; protection; guardianship.” 

The 1st DCA found that the Florida Legislature did not intend to restrict the “coverage” of the sexual battery by a person in a position of familial or custodial authority law in the same way it did with the accessory law – since they could have put similarly specific language in the former if it was supposed to be read exactly the same way:

“Obviously, if the legislature had intended to restrict the provisions of section 794.011(4)(e) to persons related to the victim by consanguinity (blood relationship), or affinity (marital relationship), it could have employed the same language used in section 777.03, but it did not. For example, the legislature might have provided in section 794.011(4)(e)—notwithstanding that the defendant had no blood or marital ties to the child—that if one stands in the position of in loco parentis to such person, meaning one who takes a child into his own home, and assumes the responsibility of maintaining, caring and supporting the child in the same manner as the actual parent, 25 Fla.Jur.2d Family Law Section 78 (1981), and sexually batters the child, such person shall be guilty of the offense specified.”

Finding that Coleman remained in a position of familial or custodial authority to the victim even though he was not the victim’s father or stepfather– and that the charging document’s description of Coleman as the stepfather did not “prejudice” him – the 1st DCA concluded:

“It is true that the information identified appellant as the stepfather of the minor victim during a time when such relationship did not exist. Nevertheless, in view of what we find to be the legislature’s intent behind the enactment of the statute on which the charge was based, we consider the language in the information to be mere surplusage and a nonessential element of Section 794.011(4)(e), Florida Statutes (1983) … The same result applies here. The appellant’s familial or custodial position with the victim at the time he committed the offense proscribed was clearly established by the proof. Under the circumstances, the language in the information describing appellant as the victim’s stepfather must be considered immaterial surplusage, not prejudicial to the appellant’s defense.”

In sum, Coleman v. State, 485 So.2d 1342 (Fla. 1st DCA 1986) is a significant development in Florida’s corpus of case law surrounding how broadly (or narrowly) the state’s sexual battery by a person in a position of familial or custodial authority law should be construed. The 1st DCA (Tallahassee and North FL’s highest court) found that:

• Florida’s accessory statute was deliberately “narrow,” whereas the sexual battery by a person in a position of familial or custodial authority law was written more broadly
• Thus, Coleman’s use of Fla. Stat. 777.03 to argue he was not in a position of familial or custodial authority was unconvincing
• The fact that the charging document described him as the victim’s “stepfather” did not change the analysis
• Thus, his conviction was AFFIRMED (e.g. not reduced/no new trial required)

Florida’s criminal defense community should take note of Coleman v. State, 485 So.2d 1342 (Fla. 1st DCA 1986), as it defines the scope of the sexual battery by a person in a position of familial or custodial authority statute.

If someone is charged in a case involving alleged sexual battery by a family member or person in custodial authority, it is critical to seek out experienced and trusted legal representation as soon as possible. This vital decision could make the difference in whether or not a person is subject to hefty fines and prison time. 

Criminal Defense Attorney in Tallahassee, FL

Don Pumphrey, Jr. is a Former Prosecutor, Former State Police Officer, Lifetime Member of the Florida Association of Criminal Defense Lawyers; for over 25 years as a private defense attorney who is Trusted, Experienced, Aggressive in Criminal Defense as a Trial Attorney, Criminal Lawyer, Criminal Defense Lawyer for the accused in Florida State Courts located in Tallahassee, Florida but handling cases throughout the State of Florida.

Don Pumphrey, Jr. and the Tallahassee criminal defense lawyers at Pumphrey Law have decades of experience fighting criminal charges on behalf of clients and winning. Call Pumphrey Law now at (850) 681-7777 to learn more about what we can do for you. Our lawyers will be happy to provide you with a free consultation.

  Social Share