Protective Injunction for Domestic Violence Defense Attorneys in Florida
Defending Against Domestic Violence Injunctions
What is an injunction?
An injunction, also known in Florida as a “restraining order,” “protective injunction,” or “protective order,” is a court order compelling a party to do or not do certain acts. An individual that fails to abide by the terms of an injunction can face civil or criminal penalties, including prison time and harsh monetary fines. The individual can also be held in contempt of court.
There are five types of injunctions in Florida, including:
- Domestic violence
- Dating violence
- Sexual Violence
- Repeat Violence
How are each of the above types of injunctions similar?
- The party against whom the injunction is sought is identified in court as the respondent. The petitioner is the party that files the injunction against the respondent.
- The petition needs to be sworn, meaning that the signatures on the document must be made in the presence of the court clerk or a notary.
- The judge has the discretion to issue a temporary injunction prior to when a hearing on the injunction is held.
- The temporary injunction remains in effect until the hearing involving both the petitioner and respondent is held.
- The temporary injunction is typically served on the respondent by the local sheriff.
- A hearing can be held even if a temporary injunction was denied by the court.
- The respondent is entitled to receive notice of the hearing.
- The petitioner and respondent can both bring forth witnesses to testify on their behalf.
- After the hearing, the judge may issue a permanent injunction against the respondent.
- A permanent injunction remains in effect until the court modifies it.
- If a respondent violates the terms of the injunction, he or she can face serious penalties, including jail time and monetary fines.
What makes a domestic violence injunction unique?
- The petitioner and the respondent must be family or members of a household who are currently, or were in the past, together in the same, single dwelling unit unless the two individuals have a child or children in common.
- Parents of a common child or children do not have to reside together or be married.
- The petitioner must establish that he or she reasonably believes that he or she is in imminent danger of being a victim of domestic violence, or that he or she is a victim of domestic violence.
- Provides protection from contact or violence, the terms of which may include children.
- The petitioner can remain in the shared dwelling while the respondent is forced to leave.
- The injunction may bar the respondent from the petitioner’s home or a shared dwelling.
- The petitioner may temporarily have the child or children for 100% of the time.
- The respondent may be required to provide support to the petitioner and/or their child or children.
- Respondent may be required to surrender ammunition and firearms pursuant to a temporary injunction.
- Respondent must surrender ammunition and firearms pursuant to a permanent injunction.
- Respondent may be required to attend a Batterers’ Intervention Program.
Who can file a domestic violence injunction?
Under Florida law, the following individuals can file a domestic violence protective injunction:
- A former spouse or current spouse;
- An individual related by marriage or blood;
- An individual with whom the petitioner is currently residing;
- An individual who formerly resided with the respondent and was in an intimate relationship; or
- The father or mother of the petitioner’s child or children, regardless of whether they ever lived together or were married.
When is a domestic violence injunction warranted?
A domestic violence protective injunction is warranted if a person is alleged to have done the following:
- Caused physical injury to the victim through the commission of a crime;
- Used threats or physical acts that cause the victim to fear for his or her own safety; and/or
- Caused the victim to believe that he or she will be harmed by an act of violence.
How can a domestic violence injunction be dismissed, vacated, modified, dissolved, changed, or removed once it is effective?
A domestic violence injunction can only be dismissed, vacated, modified, dissolved, removed, or changed through the court. To obtain relief from a domestic violence injunction, a party must establish during a hearing that the circumstances that gave rise to the injunction no longer exist such that the continuation of the injunction would serve no valid purpose.
How does a victim of domestic violence obtain a domestic violence injunction?
In Florida, the petitioner files a Petition for Injunction for Protection Against Domestic Violence. A judge typically reviews the petition soon after it is filed. If on its face the judge determines that the petition meets the legal requirements for an injunction, he or she will grant a temporary injunction. At this juncture, the judge does not determine whether the facts of the petition are truth or lies, as this is addressed during a hearing that occurs following the approval or denial of the petition. If a temporary injunction is granted, the next step is to have the sheriff serve the order on the respondent. At this time, the respondent must vacate the premises. Typically, the sheriff allows the respondent to gather his or her personal effects.
The next step in the process is called a “return hearing,” which is typically scheduled within a maximum time frame of fifteen days. A return hearing is the moment of truth where the court determines whether to deny the injunction or keep it in place for a certain period of time.
What occurs at a domestic violence injunction hearing?
When a person files a domestic violence protective injunction, the court may schedule a hearing, even if a temporary injunction was denied. During the hearing, the petitioner has the burden of proving that he or she was a victim of domestic violence. This includes bringing all necessary documentation, witnesses, police officers, and other evidence to support the petitioner’s domestic violence claim. At the hearing, the petitioner will be placed under oath to provide his or her testimony. The respondent may also testify and bring all necessary evidence to court to support his or her claim that the domestic violence protective order is unwarranted. Each party has the right to cross examine the other party as well as any witnesses that are called. The judge then renders the final decision as to whether he or she will grant or deny the petitioner’s request for an injunction.
What occurs if the respondent violates the domestic violence injunction?
If the respondent violates the domestic violence injunction, he or she will likely face criminal charges, which can result in the potential for imprisonment, monetary fines, and more.
Under what circumstances can a domestic violence injunction be extended?
Under Florida Statues Section 741.30(1)(a), “[w]hen moving for an extension of a preexisting injunction, the petitioner must establish either that additional domestic violence has occurred or that, at the time the petition for extension is filed, he or she has a continuing reasonable fear of being in imminent danger of becoming the victim of domestic violence.
Frequently asked questions about domestic violence injunctions in Florida
What occurs when a person files a domestic violence injunction?
When a petition is filed, a judge renders a determination as to whether he or she will (i) grant the petition and schedule a hearing within fifteen days, (ii) set a hearing without granting a temporary injunction, or (iii) deny the petition without granting a hearing. Typically, the judge issues a temporary injunction to air on the side of caution.
A temporary injunction prevents the respondent from having contact with the petitioner for fifteen days until the hearing takes place. At the hearing, both parties have the opportunity to present their cases. If the claims brought forth in the domestic violence petition are untrue, exaggerated, or misrepresented, the attorney for the respondent will seek to have the injunction denied and the dismissal of the petition.
What occurs if the respondent does not challenge the petition?
If the respondent does not challenge the petition, then this means that the petitioner can bring forth their cause without the respondent being there to challenge his or her claims or evidence. The implications of an injunction are serious, and that is why it is critical for the respondent to attend the hearing and challenge the allegations.
What happens if the court grants the domestic violence injunction following the hearing?
If the court grants the injunction against the respondent, he or she may not return home to the shared residence with the petitioner. If they have a child or children together, the respondent may not be able to see them until the court renders a parenting determination, such as one that is typically made during a divorce case. Once the injunction is in place, the respondent must surrender his or her ammunition and firearms. He or she will also be barred from purchasing firearms. The respondent may also be prohibited being in areas where the petitioner typically goes, such as his or her residence, job, place of worship, or school. The court can also order the respondent to attend intervention programs and/or counseling.
How long does a domestic violence injunction last for?
A permanent injunction lasts until it is changed by the court or at a date chosen by the judge. An injunction can last for many years, depending upon the facts and circumstances of each case. If the injunction expires, the petitioner can request an extension as long as he or she does so before the expiration date.
The domestic violence protective order specifies that there is to be "no contact." What does this mean?
If the order provides that the parties shall have "no contact," that means there should be no communication, either indirectly, directly, or through a third party, between the respondent and the petitioner.
How is a domestic violence injunction violated?
If a petitioner is contacted by the respondent, or if the respondent threatens or harms the petitioner, these are clear violations of the protective order. There are times, however, where it is not clear to the respondent that they have violated the injunction. For example, the respondent may send a non-threatening message through a family member or directly to the petitioner. Or, the respondent is too close to one of the prohibited places where the petitioner frequents, such as a church, school, or store. Under these set of circumstances, the petitioner can be deemed in violation of the injunction. That is why it is critical to carefully review all of the terms of the injunction.
What will happen if an individual violates a domestic violence injunction?
If a respondent violates a domestic violence injunction, he or she is committing a criminal act. In some cases, a violation of a domestic violence injunction can be deemed felony, resulting in imprisonment, monetary fines, and more.
Are domestic violence injunctions public records?
Yes. Injunctions constitute public records, meaning that the allegations raised in a petition can be visible to anyone.
Can a person appeal a domestic violence injunction?
Yes, it is possible to appeal an injunction, even if it has expired. An attorney is in the best position to advise whether a respondent should or should not file an appeal of his or her case.
Will an expired injunction still affect me?
Since domestic violence injunctions are public record and cannot be expunged, it is possible for an expired injunction to continue to affect an individual’s life for years to come. Specifically, the individual may not be able to find gainful employment and/or housing, and may permanently be prohibited from purchasing a firearm. As such, if an individual seeks to have an injunction overturned, the court will allow the respondent to pursue an appeal of the case.
Do I need a criminal attorney to represent me?
An injunction is meant to protect a person from harassment or violence, which are crimes in Florida. Even if the injunction was sought in a civil matter, such as a family law case, it is critical that you obtain a criminal defense attorney to assist you in challenging the allegations. While having an attorney is not mandatory, it is important to understand that a skilled Florida criminal defense attorney who knows the relevant domestic violence injunction laws and will zealously present your case to the fullest extent of the law. A civil attorney may be aware of the laws, but he or she is not in a best position to appreciate the nuances of injunction cases, which can often make the difference between failure and success.
During the hearing, a seasoned Florida criminal defense attorney will fight to challenge the information that the petitioner presents and provide the court with an alternative account of why the petition was filed in the first place. For instance, a petitioner may falsely seek a petition to (i) obtain sole custody of children; (ii) harass the respondent; (iii) to gain the upper hand in a family law proceeding; and (iv) negotiate more favorable terms in a contract or other dispute.
What are the consequences of a domestic violence injunction?
There are several ways in which a domestic violence injunction can negatively impact a person’s life, which is why it should always be taken extremely seriously. Having a seasoned criminal defense attorney by your side should be your first step in challenging the allegations underlying the injunction.
Some of the consequences associated with a domestic violence injunction that was successfully filed against another individual are as follows:
- Damage to your livelihood and financial welfare. As noted above, a domestic violence injunction becomes part of the public record and cannot be expunged. Accordingly, anyone who conducts a search for a variety of reasons, including a lender or potential employer, can see the injunction and will probably make certain presumptions about the respondent’s mental health and violent tendencies. This could cause a person to lose out on the ability to obtain gainful employment, get a loan, and/or find suitable housing.
- Surrendering of ammunition and firearms. In Florida, if a person has an injunction that was filed against him or her, he or she must surrender to law enforcement all ammunition and firearms.
- No further contact with the petitioner. Once an injunction is in place, even contact that is made mistakenly or innocently violates it. In this set of circumstances, you could be placed under arrest and charged with either a misdemeanor or felony, depending upon the nature of the no contact violation.
Contact Musca Law Today. Your Life and Your Liberty Depend Upon It!
Facing the prospects of an injunction can be frightening, as an active injunction can negatively affect your life in a multitude of ways. When you work a seasoned Florida criminal defense attorney at Musca Law, he or she will help you to challenge an injunction to the fullest extent of the law. Our firm’s attorneys are among The National Trial Lawyers – Top 100 Trial Lawyers, included in the 2012 Florida Super Lawyers® for criminal defense, and boast 10.0 Superb Avvo ratings. Our attorneys are skilled, experienced, tenacious, and relentless when it comes to defending our clients. To learn more about how Musca Law can make a difference for you, call (888) 484-5057 today.