Domestic Violence Injunction Defense Lawyers in Fort Myers
An injunction, also commonly referred to as a “protective order,” “restraining order,” or “protective injunction,” is a court order compelling a person to engage in or not engage in certain behaviors. If an individual is in violation of an injunction, then he or she may face criminal and civil repercussions, including imprisonment, monetary fines, and being held in contempt of court.
In Florida, there are five forms of injunctions, which include:
- Domestic violence
- Repeat violence
- Sexual violence
- Dating violence
How are the above injunctions the same?
- The person who has a petition for an injunction filed against him or her is known as the respondent. The party who seeks a petition for injunction is identified by the court as the petitioner.
- The petition must be sworn, which means that it has to be notarized or signed in front of the court clerk.
- The judge has the discretion of granting a temporary injunction once the petition is filed.
- A temporary injunction remains in effect until the final hearing is held, which is usually fifteen days after the petition is filed.
- In most instances, the local sheriff serves the petition on the respondent, which provides him or her with notice of the final hearing date.
- The judge may decide to schedule a hearing even if he or she denies the temporary injunction.
- At the close of the hearing, the judge has the discretion to approve or deny a permanent injunction.
- A permanent injunction remains in effect permanently unless one of the parties requests that the court dissolve, modify, or alter it.
- If the respondent is found in violation of the injunction, he or she may face serious civil and criminal repercussions, including jail time, monetary fines, and being held in contempt of court.
What is unique about a domestic violence restraining order?
- To file a petition, the respondent and petitioner must have a familial relationship or be members of the same household who currently live together or who in the past lived together. If the parties to a domestic violence injunction have a child or children in common, even if they do not reside together, a domestic violence injunction can be sought.
- The petitioner must prove to the court that he or she is a victim of domestic violence, or has a reasonable belief that he or she will become a domestic violence victim.
- The purpose of a domestic violence injunction is to protect the victim from violence as well as contact by the respondent. The injunction may also serve to protect the child or children of the relationship.
- The respondent must leave the parties’ home if it is a shared dwelling.
- The respondent will be barred from coming within a certain number of feet from where the petitioner resides.
- The petitioner has the right to remain in a shared dwelling with his or her children, if applicable.
- Once an injunction has been issued, the petitioner may be granted custody of the child or children of the relationship.
- The respondent, during the pendency of the injunction, may be ordered to pay child support to the petitioner.
- Once a temporary injunction is in effect, the respondent may be required to turn in any guns or ammunition to police.
- Once a permanent injunction is in effect, the respondent must turn in any guns or ammunition to police.
- The court may order the respondent to seek mental health treatment at his or her own expense.
When is a domestic violence injunction warranted?
The petitioner can seek a domestic violence injunction if the respondent:
- Injured the petitioner due to the commission of a crime;
- Threatened the petitioner or engaged in certain acts that caused him or her to have a fear of immediate harm; and/or
- Caused the petitioner to have a reasonable belief that he or she will be physically injured by the respondent’s actions.
Who may file a petition for a domestic violence injunction?
- A current or former spouse;
- A person who resides with the respondent;
- A blood relative or individual related by marriage;
- A person who in the past, resided with the petitioner and with whom he or she was involved in an intimate relationship; or
- A person who shares a child or children in common with the petitioner.
Can a domestic violence injunction be altered?
Under certain circumstances, a court will vacate, dismiss, remove, dissolve, or otherwise amend a domestic violence injunction. A party seeking to have the injunction changes must submit evidence to the court evincing that the facts supporting the need for an injunction are no longer in effect and there is no valid reason for the injunction to remain effective.
How does a victim of domestic violence obtain an injunction?
In Fort Myers, a domestic violence victim must submit to the court a document referred to as a Petition for Injunction for Protection Against Domestic Violence. Once the petition is filed, a judge will typically review it within a short period of time. He or she will then decide whether the facts, on the face of the petition, support the need for a temporary injunction. At this phase, the judge does not determine the veracity of the facts supporting the petition, as this is accomplished during the final hearing stage of the case. Once the temporary injunction is approved, the local sheriff serves the respondent with the petition and the respondent must vacate the premises if it is a shared dwelling.
Fifteen days following the filing of the petition, a final hearing, also known as a “return hearing,” takes place. This is where the parties may submit evidence, including witness testimony, to the court. At this stage, the judge examines whether the facts raised in the petitioner truthful and then decides whether to deny or grant the permanent injunction.
What occurs during a return hearing?
During a return hearing, the petitioner must establish that a permanent injunction is warranted. In so doing, he or she must submit evidence to the court, which may include, without limitation, documentation, witness testimony, and the testimony of law enforcement to establish that he or she is entitled to an injunction. The respondent may also submit such evidence the court in order to defend himself or herself against the allegations raised in the petition. Each party has the right to cross-examine the other party and his or her witnesses. The judge, once all of the evidence has been heard by the court, then will determine whether to deny or grant the permanent injunction.
What are the legal repercussions if the respondent violates the domestic violence injunction?
If the respondent violates the terms of a domestic violence injunction, he or she may face jail time, steep monetary fines, and other consequences, including being held in contempt of court.
Can a domestic violence injunction be extended?
Under Florida Statutes Section 741.30, an individual who seeks to extend an injunction, if it is set to expire, must submit evidence to the court that he or she was once again a victim of domestic violence or has a reasonable belief that he or she will become a domestic violence victim.
Frequently asked questions about domestic violence injunctions in Lee County, Florida
What happens when an individual files a petition for a domestic violence injunction?
Once a petition is submitted to the court, a judge decides whether to grant or deny the injunction and whether or not to schedule a return hearing. Most judges in Fort Myers issue a temporary injunction as a precautionary measure to protect the petitioner from threats or acts of violence that may occur before the return hearing takes place.
Should a temporary injunction be approved, the respondent will be barred from having any contact with the petitioner until the return hearing is held. During the return hearing, both the petitioner and the respondent will have the chance of presenting his or her case to the court. If the claims in the petition are exaggerated, untrue, or misrepresented, the respondent’s Fort Myers criminal defense lawyer will move to have the petition dismissed and the injunction denied.
What if the respondent does not challenge the claims asserted by the petitioner?
If the respondent does not challenge the factual claims raised in the petition, the petitioner will be able to make a one-sided presentation of the case without it being contested. Because injunctions have very harsh penalties, it is vital that the respondent work with a Fort Myers criminal defense attorney to develop a strong defense to the claims and seek a dismissal of the case.
How long is a permanent injunction last for?
A permanent injunction is in effect until the court modifies it. As such, a permanent injunction can last indefinitely, or for several years, if it has an expiration date. If the injunction is set to expire, the petitioner may petition the court to extend it.
A permanent injunction remains effective until it expires for the court changes it. Accordingly, a domestic violence injunction can be in effect indefinitely or for several years. If the injunction has an expiration date, the petitioner may return to the court to seek to extend it.
What happens if the judge approves a domestic violence injunction?
The respondent must immediately vacate a shared dwelling if the court approves the domestic violence injunction. If the parties have a child or children in common, the respondent may be barred from being in their presence until the court determines an appropriate parenting schedule. Once the domestic violence injunction is approved, the respondent must surrender all ammunition and firearms. The respondent will also be permanently prohibited from purchasing ammunition and firearms in the future. The respondent must also avoid contact with the petitioner, and will be barred from areas where the petitioner frequents, including a place of worship, workplace, or school. The judge may also force the respondent to seek mental health treatment at his or her own expense.
What is the definition of “no contact”?
“No contact” means that the respondent cannot communicate with the petitioner under any circumstances, whether directly or indirectly, or through another person such as a family member or friend.
Can the respondent appeal a domestic violence injunction?
Yes, a domestic violence injunction can be appealed. A skilled Fort Myers domestic violence injunction defense lawyer can advise you as to your options in this regard.
How is a domestic violence injunction violated?
If the respondent contacts the petitioner, or if the respondent harms or threatens to harm the petitioner, these all constitute violations of an injunction. Keep in mind that it may not be fully clear as to whether an injunction is being violated. For instance, the respondent could mistakenly send a non-threatening text message or email to the petitioner or to one of his or her family members. Of, the respondent could unknowingly go into a store where the petitioner happens to be present. This is why it is vital that you work with an attorney who can advise you as to the terms of the injunction in order to avoid violating them.
What consequences are associated with the violation of a domestic violence injunction?
It is a criminal offense to violate a domestic violence injunction. Specifically, the court can impose civil and criminal penalties, such as jail time, monetary fines, and being held in contempt of court.
What are the repercussions of an injunction after it is set to expire?
A domestic violence injunction becomes a permanent part of the public record and cannot be expunged. This means that even if an injunction has expired, anyone can learn that one has been issued against the respondent. This may affect the respondent’s ability to obtain a suitable housing arrangement, obtain a bank loan, or find gainful employment. The respondent will also be permanently barred from purchasing firearms and ammunition.
I heard that a return hearing is not as formal as a regular trial. Do I still need a criminal defense lawyer to represent me?
While it is not mandatory to work with an attorney, it is prudent that you do so. Only a highly skilled lawyer knows the ins and outs of the courtroom as well as the applicable law, and also has a positive relationship with the prosecutor and the judge.
A domestic violence injunction means that a person will be subject to several restrictions, and he or she may face civil and criminal penalties if violated. A seasoned attorney will represent a respondent’s interests in court, fight for a dismissal of the petition, develop the strongest defense strategy possible, and keep him or her informed during the pendency of the case. During the return hearing, a skilled Fort Myers criminal defense attorney will seek to refute the evidence as well as cross-examine the petitioner and any of his or her witnesses.
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