What is a Family Member or Custodian for Enhancement Purposes in Florida?

May 23, 2025 Don Pumphrey, Jr. Criminal Defense, Sex Crimes Social Share

In Florida, some crimes are “enhanceable” offenses. Certain facts may allow the State to charge what would otherwise be a misdemeanor as a felony, or a felony as an even more serious felony. 

One such fact that can lead to an enhanced charge, and an enhanced sentence, is the fact that an offender was a family member or custodian of a child victim. This is most commonly an issue in the context of sex crimes. But what is a family member or custodian under Florida law? 

This article will discuss the definition of family member or custodian for the purpose of sentencing, and the potential (additional) penalties someone may face if they are considered a family member or custodian in an offense involving a child victim.

Multiple offenses under Florida law authorize enhanced punishments for a defendant who is found to be a family member or custodian of a child victim at the time the alleged offense was committed. Such crimes include:

• Sexual battery: If a person in familial or custodial authority (over the age of 18) commits sexual battery upon a child under the age of 16, this is punishable by up to life in prison, and even the death penalty if the child is under 12. Life imprisonment is the mandatory minimum if the person is in a position of familial or custodial authority. (F.S. 794.011)
• Lewd or lascivious conduct/exhibition: If a person in a position of custodial authority engages in lewd or lascivious molestation of a child, they face a mandatory minimum sentence of 25 years. (F.S. 800.04)

For someone to be considered a family member or custodian of the child victim for purposes of enhancing the charge brought against them, they must be a person who meets at least one of the following criteria under Stricklen v. State, 504 So.2d 1248 (Fla. 1st DCA 1986):

• They maintained a “close relationship” with the alleged child victim or other children of the specified age (such as a school employee)
•  They lived in the same household as the alleged child victim

The term “familial authority” in Florida is defined as a relationship that creates “a recognizable bond of trust” similar to that between a child and a father, grandfather, uncle, or guardian. Crocker v. State, 752 So.2d 615 (Fla. 2d. DCA 1999). “Custodian authority” implies a duty or obligation to care for the child, often in loco parentis (in place of a parent), and requires both custody and control.

Under Fla. Stat. 751.01, if they are acting in loco parentis and an adult, family members for the purpose of charging a “familial authority” enhancement may include:

• Grandparents and great-grandparents
• Siblings 
• First cousins
• Aunts, uncles, and great-aunts and great-uncles
• Nieces or nephews 

In evaluating whether someone has custodial authority over a minor for the purpose of enhancing an eligible charge, Florida’s courts evaluate the totality of the circumstances to the relationship between the child victim and the adult defendant. Custodial authority is defined as involving a duty or obligation to care for another, typically implying responsibilities in loco parentis. Hallberg v. State, 649 So.2d 1355 (Fla. 1994) 

Custodial authority enhancements are most often applied to figures such as teachers, stepparents, and individuals in positions of religious authority who have frequent contact with a child under Fla. Stat. 794.011. But these specific titles are not requirements for someone to qualify as a custodian under the law. Moreover, someone may act as a custodian temporarily in one setting – but not in another – which may complicate the analysis.

Important: Under Fla. Stat. 794.011, it is not a defense that the perpetrator was not actually in a position of control or authority, if the circumstances were such as to lead the victim to reasonably believe that the person was in such a position. If the victim’s reasonable belief is proven beyond a reasonable doubt, this can pave the way for the enhancement.

In Hallberg, for example, the Florida Supreme Court ruled that a teacher who engaged in sexual activity with a student during summer break did not have custodial authority because the incidents did not occur on school grounds and were unconnected with school activity. Id. 

Hallberg indicated that while teachers are in positions of custodian authority at school, during school hours, and at school events, this is not the case when unlawful activity stems from a rendezvous from a student that occurs with no connection to school instruction or events, off campus, during summer recess. 

Florida’s standard jury instructions for crimes that carry a “familial or custodial authority” enhancement note that an “authority figure” for the purpose of the enhancement is an individual over the age of 18, who is employed by or volunteers at a school, and whose illegal conduct occurs in connection with activities of a recognized teaching or extracurricular event.

In Pozek v. State, the Fifth District Court of Appeal held that Pozek was in a position of custodial authority, even though he was unrelated to the teenaged minor victim and not a religious figure or educator. The court noted that because Pozek, though unrelated to the victim:

• Provided the victim with food and clothing
• Drove her to school
• Took her to meetings which “arose from her troubles with the law” and attended those meetings
• Was referred to by the victim as her “uncle”
• Wrote a letter to the victim’s parents after she returned to them from running away confessing his love for her

He was acting in a position of custodial authority. Pozek v. State, 803 So.2d 768 (Fla. 5th DCA 2001)

In sum, the “familial or custodial authority” enhancement under Florida law can result in more serious criminal penalties for someone if they are convicted of an offense that allows for the enhancement. This may result in increased prison sentences and heftier fines, particularly for crimes such as sexual battery and lewd or lascivious molestation.

A person in familial authority may include parents, grandparents, cousins, nieces and nephews, great-grandparents, or other adult relatives. A person in custodial authority may include teachers (if the school year is in session or the prohibited act occurs on campus), stepparents, religious authority figures, or anyone reasonably believed to be in such a position by the child victim at the time of the offense.

If someone is arrested and formally charged in Florida and concerned about whether they qualify as a family member or custodian for enhancement purposes, it is critical to find experienced and trusted legal representation as soon as possible. This decision could make the difference in whether or not someone faces a lengthy prison term and hefty fines.

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 drug 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.

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