Injunctions For Protection Lawyer in Miami, Florida (FL)
Miami, Florida Injunction Laws, Types of Injunctions, Processes, and Defenses
Temporary Injunction for Protection in Miami, Florida
Injunctions, also commonly referred to as restraining orders, are issued by the court to protect a person from future harm. The individual who seeks an injunction is known as the petitioner. The respondent is the person who the petitioner is seeking protection against.
Under Florida law, an injunction prohibits a person from having contact with another individual. In many cases, the claims that are brought forth in a petition are false or exaggerated. That is why it is critical to work with a seasoned Florida criminal defense attorney who can assist you in attending the injunction hearing and challenging the allegations against you in order to seek a dismissal of the action. Therefore, if you were issued a temporary injunction for repeat violence, domestic violence, sexual violence, or dating violence, you should contact a seasoned Florida criminal defense attorney immediately to safeguard your legal rights and interests.
Violating an Injunction can have serious consequences.
Serious criminal charges can be brought forth due to a violation of an injunction. These charges range from a first-degree misdemeanor, which is associated with a one year jail term, and a third-degree felony, which is punishable by up to five years in prison.
Knowing the Types of Injunctions in Miami-Dade, Florida
In Florida, domestic violence includes acts of battery, stalking, assault, false imprisonment, or any other criminal act that results in physical injury or death to a member of a household or family against another household or family member. Florida law provides that the petitioner must live or have lived with the respondent or if they share a child in common. In order to file a petition for an injunction, there must be proof that the petitioner was a victim of domestic violence or has a reasonable belief that he or she will be a domestic violence victim.
Dating violence occurs between those who have or had an ongoing romantic or intimate relationship. If the relationship is no longer active, the dating relationship must have been in effect for at least six months prior to the filing of the injunction.
Stalking refers to the malicious, intentional, and repetitive following or harassment. A victim of stalking may file a petition for a stalking injunction. In Florida, stalking also includes cyberstalking, which refers to the communication with another person through electronic means, such as texting or emailing, that is not legitimate and results in serious emotional harm to the intended victim.
A person can file a repeat violence injunction if there were two instances of violence or stalking, one of which must have occurred within six months of filing the petition. In order to obtain a repeat violence injunction, the violence must have been inflicted upon a member of the petitioner’s immediate family or to the petitioner himself or herself.
Sexual violence includes acts of sexual battery, lewd acts against children, and committing or attempting to commit sexual acts as part of a forcible felony. There does not have to be a current criminal case for this injunction to be pursued. The injunction can also be sought even if a criminal case was dismissed.
A Person who Violates an Injunction in Miami, Florida Can Face Serious Consequences, Including Criminal Charges.
An injunction is a civil court remedy however, a criminal court can enforce it if a person violates its terms. In this instance, the State’s Attorney can pursue criminal charges against the offender. If such charges are sought, the offender could be imprisoned for up to a year. If a person is the subject of an injunction, he or she will be barred from purchasing or possessing ammunition or a firearm. It is important for an accused to understand that an injunction can affect one’s ability to obtain gainful employment or housing, as it may appear in public records.
The Restraining Order Process in Miami, Florida
The injunction process commences when the petitioner seeks a certain type of injunction and petitions the court accordingly. For a temporary injunction to be issued, the judge must determine that there is “clear and convincing evidence” or dating violence, sexual violence, repeat violence, or domestic violence.
In the petition, it requests the court to implement a temporary injunction against the respondent. This is typically granted right away unless the petition is insufficient on its face. The court does not hold a hearing in order to grant a temporary injunction.
Once the temporary injunction is in place, the court schedules a final hearing date to ascertain whether a permanent injunction is warranted. This hearing is held fifteen days from the date upon which the temporary injunction was granted. At this hearing, the respondent has the right to offer evidence and witness testimony to support his or her position.
Many people think that they should just represent themselves at an injunction hearing. However, this can result in serious consequences. Injunction hearings are extremely serious and follow strict rules of procedure and conduct. As such, it is critical that you hire a seasoned Florida criminal defense attorney at Musca Law to level the playing field and safeguard your legal rights and interests.
How Long is the Temporary Injunction in Effect For?
A temporary injunction remains in effect for fifteen days. However, if the respondent is in prison, the temporary injunction will be in effect for fifteen days following the date upon which he or she is released from jail. The court, in its discretion, may grant a continuance of the injunction hearing.
If a Permanent Injunction is Granted, How Long Will It Last?
There is no set timeframe for a permanent injunction. In Florida, an injunction remains in effect until it is modified or dissolved at a later date. Both parties may pursue a modification or dissolution of the injunction. This can be granted in addition to other civil or criminal remedies.
The Main Consequences Associated with an Injunction in Miami, Florida
There are a range of consequences associated with an injunction, whether temporary or permanent. Specifically, the most severe consequence of an injunction is that it cannot be expunged or sealed since it is a civil, not criminal, proceeding. This means that information about one’s injunction becomes part of the public record. In essence, a current or prospective employer can conduct a background check and easily come across information on the individuals’ injunction, which could mean the difference of whether you receive or keep your job.
An injunction can also affect one’s family. Specifically, it can have a negative effect on a future or pending family law proceeding such as a child support, alimony, or custody dispute. In custody disputes, an injunction can be a significant factor in the determination of who will serve as the primary caregiver for his or her child or children.
Injunctions can also affect a person’s work reputation, especially if both the petitioner and respondent work for the same employer. Moreover, an accused will be required to surrender his or her firearms to law enforcement and will lose the right to carry. If the court denies the injunction, the respondent’s attorney can file a special motion to request that the accused’s weapons be returned.
Additionally, if a petitioner is granted an injunction, he or she can contact the police at any time asserting that the respondent violated its terms. For example, if the respondent accidentally runs into the petitioner at a local mall or grocery store, he or she can be arrested.
The Injunction Can Wrongfully be Used as a Weapon
At Musca Law, we have represented several clients who have faced all types of injunctions. A common scenario that our attorneys see is the vengeful petitioner who is asking the court for an injunction in order to gain an advantage in a civil case, such as a divorce proceeding. For example, a typical scenario involves a woman or man who asserts that their former spouse is guilty of domestic violence against them in order to gain an advantage in a custody battle.
Another situation that we see is a petition that is filed against a coworker that is intended to force him or her out of his or her office. We also assist those who have been accused of sexual violence. Specifically, we have experienced situations where step-children make false claims against a step-parent given the fact that they no longer wish to live with him or her. Lastly, we have represented unmarried parents who have been subject to false allegations intended to damage the relationship between the respondent and his or her child.
What Happens if an Injunction is Violated?
In Florida, a person who intentionally violates an injunction can face a misdemeanor charge in the first degree, which is punishable by up to one year in jail. If you have been accused of violating an injunction, it is important that you contact Musca Law to learn more about your legal rights and options. Don’t wait – contact us now at (888) 484-5057.
How Are the Five Miami, Florida Injunctions Similar?
- The victim is known as the petitioner and the other party is known as the respondent.
- The petition must be sworn, meaning that it must be signed in the presence of a court clerk or notary.
- The judge may issue a temporary injunction before a formal hearing takes place.
- The temporary injunction remains in effect until a hearing involving both parties is held.
- The temporary injunction is served by the county sheriff on the respondent.
- A hearing may still take place even in the absence of a temporary injunction.
- The respondent is entitled to notice of any hearing.
- The petitioner and respondent may call witnesses to the stand to testify on their behalf during the hearing.
- The judge has the discretion of granting a permanent injunction following the hearing involving both the petitioner and respondent.
- Unless the judge sets a certain timeframe, an injunction will remain in effect until it is dissolved or modified by the court.
- The judge may issue a final, or permanent injunction, after a hearing with both parties.
- There are serious repercussions associated with the violation of an injunction.
How are Injunctions in Miami, Florida Different?
Domestic Violence Injunctions:
- The petitioner and respondent must be members of the same family or members of a household who are or where residing together in the same home unless they share a child or children in common.
- Parents of a child or children that the respondent and petitioner have in common do not have to be married or residing together in order to seek an injunction.
- The petitioner must prove that he or she is a domestic violence victim or has a reasonable belief that he or she is in danger of being subject to abuse in the future.
- It protects adults from violence or contact, and the terms of the injunction may include the protection of a child or children.
- Respondent, after the injunction is issued, must leave a shared home. Petitioner will be able to remain there.
- Respondent cannot be present at a shared dwelling or at the petitioner’s residence.
- The petitioner may be entitled to have the children for 100% of the time, whether on a temporary or permanent basis.
- Petitioner and/or the child or children of the relationship may be entitled to receive support on a temporary basis.
- If a temporary injunction is approved, the respondent may be required to surrender firearms and ammunition.
- If a permanent injunction is issued, the respondent will be required to surrender ammunition and guns. The respondent may also be required to attend a Batterers’ Intervention Program.
Repeat Violence Injunctions:
- There must be at least two incidents of violence or stalking by respondent on the petitioner or his or her immediate family members. One of the incidents must have happened in the past six months.
- Petitioner must be under the belief that he or she is in danger of being harmed once again by the respondent.
- Either the victim, or the parent or legal guardian of a minor child living at home may file a petition against the respondent.
- The injunction protects adults and minor children from repeated violence or contact.
- Respondent may be forced to surrender his or her ammunition and guns.
Sexual Violence Injunctions:
- Sexual violence includes a lewd or lascivious act upon or in the presence of a child, sexual performance by a child, sexual battery, or luring or enticing a child.
- Petitioner must fully cooperate with law enforcement following a report of sexual violence.
- The petitioner is protected from the respondent who has been in jail for sexual violence and whose prison sentence has ended or is due to terminate in ninety days.
- Either the victim, or a parent or guardian of a minor residing at home may file a petition for an injunction.
- Protects minors and adults from future violence or contact
- Respondent may be required to surrender his or her guns and ammunition.
Dating Violence Injunctions:
- Requires that there be a dating relationship for the past six months.
- The relationship must be more than casual; it has to be one involving the expectation of affection.
- Petitioner must prove that he or she is a dating violence victim and has a reasonable fear that he or she is in imminent danger of becoming a victim of dating violence.
- Either victim, or a parent or guardian of a minor living at home may file a petition for an injunction.
- Protects minor children and adults from further contact or violence.
- Respondent may be required to surrender his or her guns and ammunition.
Stalking (Includes Cyberstalking) Injunctions:
- There must be at least two incidences of stalking or cyberstalking.
- Either victim, or the parent or guardian of a minor residing at home may file a petition.
- Protects minors from future stalking or cyberstalking.
- Upon the issuance of a temporary injunction, the respondent may be forced to surrender his or her guns and ammunition.
- If a permanent injunction is issued, the respondent must surrender his or her guns and ammunition.
- Respondent may be court-ordered to receive treatment and his or her own expense.
Violations of an Injunction Charges in Miami, Florida
Violation Of Injunctions
If you were accused of violating an injunction in Miami, Florida, whether temporary or permanent, the repercussions are severe. Courts do not have sympathy for those who violate injunctions, regardless of the facts and circumstances of the case. Even if you have been wrongfully accused and/or feel that the terms of the injunction are unfair, it is critical that you abide by its terms. Contact a skilled attorney at Musca Law now to improve your chances of having a positive outcome in your case. Only an experienced lawyer can help you to fight for your legal rights. Don’t wait, call Musca Law today at (888) 484-5057 to learn more about your legal options.
What is the Difference Between a Restraining Order and a Protective Injunction?
A restraining order is only a short term solution. When a person seeks an injunction, there must be a hearing that is held. Until the hearing is held, which is fifteen days after the filing of the petition, a restraining order is in effect. As soon as the hearing occurs, an injunction can be issued if the judge believes that the petitioner is at risk for violence or contact.
The Penalties Associated with an Injunction
If you violate a restraining order or protective injunction in Florida, you could face first-degree misdemeanor charges that carry with them a term of up to one year in prison and fines up to $1,000. Depending upon the nature of the violation, additional charges can be brought. For example, if you stalk the petitioner in violation of a restraining order, the charge automatically becomes elevated to aggravated stalking, which carries with it a prison term of up to fifteen years.
Can I Challenge a Protective Order Issued Against Me?
You have the right to challenge a protective order. Protective orders can be issued with little evidence and justification. If you were unable to defend yourself when an injunction was issued, the attorneys at Musca law may be able to fight to get the order rescinded and cleared.
The Consequences Are Too Severe to Trust Any Other Law Firm
Contact the experienced Florida criminal defense lawyers with Musca Law today by calling (888) 484-5057. Our Miami defense attorneys will provide a confidential case review at no cost to you or your family.