Injunctions For Protection Defense Lawyer in Jacksonville, Florida
Florida Laws On Injunction, Legal Process, and Defenses to Injunctions
Jacksonville Injunctions for Protection
An injunction is a court order instructing someone to do something or not to do something, under the pains of contempt of court. Another phrase commonly used is “restraining order.” Injunctions in Florida serve to protect an individual from a particular kind of abuse. The process is considered to be a civil action, like a traditional lawsuit, rather than a criminal case. However, a violation of an injunction could be grounds for the police to issue criminal charges. The person who files the petition for injunctive relief is called the petitioner, and the subject is the respondent.
Florida’s state law permits a judge to issue an injunction to prevent one person from contacting another. Far too often, injunctions and restraining orders are used by disgruntled spouses, family members, or dating partners to make life difficult on the other, and not because the petitioner is genuinely afraid. Even though the petitioner makes the allegations under oath as a sworn statement, not everyone tells the truth.
The initial petition for an injunction could be ex parte, meaning only one party is present. In that case, the petitioner is the only party heard on the question of whether the judge should issue a temporary injunction. If a law enforcement officer served upon you a temporary restraining order, you have a right to contest an extension of the temporary injunction. This is an important legal matter which you must defend vigorously with experienced and skilled Jacksonville defense attorneys. Simply allowing the court to enter the order without objection places a significant burden on you and your freedom.
Serious Consequences for Violating a Restraining Order
Any violation of an injunction could lead to serious criminal consequences. The possible charges range in severity of potential penalty from a first-degree misdemeanor, which carries a maximum possible sentence of one year in the county jail, to a third-degree felony, which carries a maximum committed sentence of five years in the Florida state penitentiary.
Differentiating Between Injunctions Used in the State of Florida
Injunctions to Prevent Domestic Violence
Domestic violence is not merely a generic term that describes a violent act in terms of a legally defined romantic relationship. To obtain an injunction to prevent domestic violence, the petitioner must live with the respondent currently or have previously lived with the respondent. Alternatively, the petitioner could obtain an injunction against the parent of a child in common, regardless of whether the parties even lived together.
The petitioner must allege facts that show that he or she is a victim of domestic violence or is in fear of becoming a domestic violence victim. The petitioner must also allege that he or she is a victim of or in fear of becoming a victim of assault, battery, false imprisonment, kidnapping, or any other criminal act launched by one family or household member against another family or household member.
Injunctions to Prevent Dating Violence
People who are in a romantic relationship or dating relationship or were in a dating or romantic relationship for longer than six months could obtain an injunction to prevent dating violence. Any form of violence, as with an Injunction to Prevent Domestic Violence, could be the subject of an Injunction to Prevent Dating Violence.
Injunctions to Prevent Stalking, Including Cyberstalking
In Florida, stalking means intentional, repetitive, and malicious following or harassment. A stalking victim could file an injunction against the alleged stalker. The crime also includes the act described as “cyberstalking.” Cyberstalking in Florida is the repeated communication directly through electronic means. Additionally, the purpose of electronic communications cannot have any legitimate purpose, which also results in the petitioner experiencing severe emotional distress.
Injunctions to Prevent Repeated Violence
An injunction to prevent repeated violence could be granted by the court when the petitioner alleges two or more occurrences of stalking or violence if one of the two instances happened within six months from the date when the initial petition was filed. Additionally, any allegations of violence must have been perpetrated upon the petitioner or a member of the petitioner’s immediate family.
Injunctions to Prevent Sexual Violence
An injunction to prevent sexual violence orders the respondent to refrain from committing a lewd act against a child and any act of sexual battery. Injunctions to prevent sexual violence can also enjoin sexual acts committed as a component of a forcible felony. A criminal case does not have to be pending for a judge to order this injunction. The judge has the authority to issue an injunction to prevent sexual violence even if the court dismissed the underlying criminal case.
Violating an Injunction in Duval County Could Lead to Criminal Charges
A violation of the terms and conditions of any injunction could lead to serious consequences. The state’s attorney has the authority to issue a criminal charge against any person who violates an injunction. At a minimum, the person who violates an injunction faces up to one year in jail. Furthermore, the person subject to any domestic violence or other injunction may not possess a firearm or ammunition and may not purchase a firearm or ammunition.
The Process of Obtaining an Injunction in Jacksonville
A petitioner begins the process of filing a request for an injunction by filing the appropriate paperwork with the court. The court will grant the petition for injunctive relief provided that the court finds by clear and convincing evidence that dating violence, domestic violence, repeat violence, or sexual violence occurred.
In the initial stage, the petitioner asks the court to enjoin the respondent temporarily. Judges in Jacksonville typically issue temporary orders after reviewing the face of the petition. The court will deny the petition if no facts support the request. The court does not hear evidence at this time.
If the court grants a petition for temporary injunctive relief, then the court will schedule a hearing on the issue of whether a permanent injunction is necessary to protect the petitioner and the petitioner’s family. The hearing on the permanent injunction takes place fifteen days after the court grants the temporary order.
The respondent has due process rights in an injunction hearing. The respondent has the right to argue against the court-ordered restraint upon his or her liberty at the hearing to decide whether an injunction should issue permanently. The respondent can offer evidence in the form of witnesses and documentary evidence to defend against the allegations contained in the petition.
Self-representation, in his instance, is very risky. Allegations contained in a petition for a preliminary injunction often allege criminal activity. Speaking in court without a lawyer present could jeopardize your defense by making an incriminating statement in court. However, when a lawyer experienced in defending clients’ rights at injunction hearings from Musca Law stands by the respondent, the respondent will be protected from making incriminating statements as well as protecting your liberty interests.
Three Questions Frequently Asked About Injunctions for Protection in Florida
How Long Does a Temporary Injunction Last?
A temporary injunction lasts at most for fifteen days. Under Florida law, the temporary injunction cannot be extended by the court after fifteen days elapses with one exception. A temporary injunction issued while the respondent was in jail will be extended for fifteen days after the respondent secures his or her release from incarceration. The judge enjoys the discretion to continue the extension hearing if necessary.
Can a Permanent Injunction be Modified?
A permanent injunction, as the name indicates, could last forever. But, Florida law permits either the petitioner or the respondent to ask the court to modify the terms of the injunction or dissolve the injunction altogether. The court can issue the appropriate relief in conjunction with any criminal or civil remedy.
What are the Major Differences Between A Restraining Order and an Injunction for Protection?
Courts issue restraining orders as a short-term solution to prevent additional harm. The restraining order enters when a judge finds that a further hearing is warranted. The court issues an order “restraining” the respondent from committing an act complained of or any other criminal act contained in the order. The judge would enter a protective injunction at the subsequent hearing if the petitioner satisfied the court by producing clear and convincing evidence that the injunction is required to protect the petitioner.
Primary Concerns About Receiving an Injunction in Jacksonville
Musca Law’s injunction defense lawyers have tremendous experience and success defending clients against numerous allegations contained in petitions for injunctive relief. One scenario, in particular, continues to emerge throughout our representation of respondents to petitions for injunctive relief. Domestic violence injunctions are not meant to be used offensively. The laws were enacted to protect people, mostly women but not exclusively from legitimate domestic abuse. In reality, many petitioners use the domestic violence injunctive order to gain the advantage in another court proceeding such as a divorce case or child custody proceeding.
Sexual violence injunctions are also used offensively. At Musca Law, we have represented step-parents accused by step-children of sexual violence, and, during the hearing for an injunction, the motive is for filing the petition was to remove the step-parent from home. Additionally, parents have fabricated evidence of sexual battery to ruin the relationship between the child and the other parent.
What Would Happen if the Injunction was Violated?
A willful violation of a protective injunction could result in a criminal charge. A violation of an injunctive order without aggravating factors is a first-degree misdemeanor. A conviction for a first-degree misdemeanor could result in a one-year commitment to the county jail. Aggravating factors escalate the seriousness of the charges. Therefore, you must contact Musca Law immediately upon learning of charges relating to a violation of an injunctive order.
Similarities Among the Five Types of Injunctions
All five of the injunctions allowed by Florida law bear strong similarities regarding the procedure required to initiate the proceedings and the due process rights of both parties. For example:
- All petitions must be sworn and subscribed-to under the pains and penalties of perjury before a court clerk, notary public, or another person designated to administer oaths in Florida;
- The judge may issue a temporary order or restraining order before holding a full hearing on the merits of the petition;
- If the judge issues a temporary order, then the order shall remain in effect until the final hearing;
- Every respondent must receive notice of the petition. The county sheriff’s office commonly serves notice upon the respondent.;
- The court could conduct a final hearing on the merits of the petition even if the court did not grant temporary relief;
- Both sides can produce evidence in the form of exhibits and live testimony at the hearing on the merits of the petition;
- The court will rule upon the merits of the petition at the close of the hearing and could issue a permanent injunction;
- A permanent injunction could be dissolved, vacated, or modified after one of the parties petitions the court; and
- Violating any one of the five different types of injunctive orders could be a serious criminal offense.
Differences Between The Injunctions in Jacksonville
Injunction Against Domestic Violence
- To issue, the judge must find that the petitioner and respondent lived in the same household or members of the same family living in the same home, or the petitioner and respondent have a child in common;
- Parents who have a child in common do not have to show they lived together previously or were ever married;
- The petitioner must establish that he or she is in danger of suffering domestic violence or is a victim of domestic violence at the hands of the respondent;
- The order for injunctive relief may contain a stay-away/no-contact order as well as an order preventing abuse. The court could extend this order to children also, and the court could order the respondent to pay temporary child support;
- If the court grants an order, then the respondent must leave home and the petitioner may stay;
- The respondent must surrender any guns and ammunition and may not possess either if the court issues a temporary restraining order and a permanent injunction.
- The court can order the respondent to attend a batterer’s counseling program.
Injunction Against Repeat Violence
- The court must find that the respondent committed two separate acts of stalking or violence against the petitioner or someone in the petitioner’s family. Also, one of the incidents must have transpired within the six months preceding the petition;
- The petitioner must allege fear of the respondent committing repeated acts of violence;
- The alleged victim may file the petition, so too can the family of the victim;
- Both adults and children could receive protection from a court order; and
- The respondent must surrender firearms and ammunition.
Injunction Against Dating Violence
- The petitioner must prove the existence of a substantial dating relationship, that is one that has lasted longer than six months;
- A casual relationship is insufficient to qualify for injunctive relief;
- The petitioner must claim that he or she is in imminent threat of bodily harm committed by the respondent;
- Any family member living with the victim can file for injunctive relief; and
- The respondent must surrender all firearms.
Injunctions Against Sexual Violence
- The petitioner who makes a claim for protection must cooperate with law enforcement authorities;
- Injunctive relief under this section protects a victim from sexual violence committed by a person who has been released from incarceration or is about to be released from incarceration within 90 days;
- All guns and ammo must be surrendered; and
- Both children and adults are protected from sexual violence under this section.
Injunctions Against Stalking and Cyberstalking
- Two incidents of stalking or cyberstalking qualify for injunctive relief;
- Both minors and adults receive protection under the order;
- Guns and ammunition must be surrendered upon issuance of a temporary and permanent order; and
- The Court can order the respondent to enter and complete treatment.
Possible Penalties for Violating an Injunction
Any person who violates an injunctive order could face criminal charges that could lead to up to one year in jail as a first-degree misdemeanor. The accused might face additional charges depending on the nature of the violation. For instance, stalking in violation of an injunctive order is a second-degree felony punishable by up to fifteen years in prison.
How can an Injunction be Challenged?
The respondent could lose significant liberty interests if the court issues injunctive relief, Freedom of movement, association, and other rights, like those guaranteed by the First and Second Amendments, will be infringed by an order granting injunctive relief. Fortunately, the court’s order granting relief can be challenged at any time.
It is important to remember that violating an injunctive order is a crime. Judges do not take kindly to people who violate court orders. Therefore, it is vital to your freedom to understand all of the terms of the order and the make sure that you comply with the order, even if the judge granted the order based on half-truths.
Call Musca Law’s Jacksonville Injunction defense attorneys at 888-484-5057 to speak with one today.