Defense Attorneys for Protective Injunctions for Domestic Violence in Miami, Florida
How to Defend Against Domestic Violence Injunctions
Defining an Injunction:
Injunctions, which are also referred to in Florida as “protective injunctions,” “restraining orders,” or “protective orders,” are court orders that compel a person to do or refrain from doing specific acts. If an individual violates the terms stated within the injunction, then he or she may be subject to criminal and civil penalties, which include jail time, monetary fines, and be found in contempt of court.
In Florida, injunctions may be entered in five different categories, which include the following:
- Domestic violence
- Sexual violence
- Dating violence
- Repeat violence
What are the similarities between these types of injunctions?
- The person who is the subject of the injunction is the respondent. The party seeking the injunction is the petitioner.
- The petition must be signed in front of a notary or court clerk in order to be considered “sworn.”
- The judge may enter a temporary injunction before a hearing is held fifteen days after the petition was filed.
- Temporary injunctions will remain in effect until a formal hearing takes place.
- In most instances, the local sheriff will serve the petition on the respondent. Notice of the hearing must be given to the respondent as they are legally entitled to this information.
- The temporary injunction is effective until the date of the hearing.
- The petition will typically be served by the local sheriff on respondent.
- The judge can order a hearing even if he or she denied the temporary injunction.
- Both parties can call witnesses who are able to offer relevant testimony on their behalf.
- Following the hearing, the judge can make the injunction against the respondent permanent.
- Permanent injunctions are effective until they expire, if applicable, or if the court modifies them.
- If the respondent is in violation of the injunction, then he or she may be faced with severe consequences, which can include time in prison and monetary fines. He or she can also be held in contempt of court.
In what ways are domestic violence restraining orders unique?
- A respondent and a petitioner must have a familial relationship or be members of the same household currently live together or have resided together in the past in the same single dwelling unit, or in the alternative, they must have one or more shared children.
- The petitioner is required to prove that he or she is currently a victim of domestic violence, or that he or she holds a reasonable belief that he or she is facing an imminent danger of becoming a victim of domestic violence.
- Parents who share one or more common children together need not live together in order to obtain a domestic violence injunction.
- Domestic violence injunctions provide protection from violence and contact and may also include the child or children of the relationship between the petitioner and respondent.
- The respondent cannot be present at the shared dwelling or home of the petitioner.
- The petitioner will have the right to continue to reside in the shared home and the respondent must leave pursuant to terms of the domestic violence injunction.
- The petitioner may have possession of the child or children of the relationship at all times for a temporary period.
- The respondent may be forced to provide the petitioner with child support payments.
- The respondent may be forced to turn into law enforcement all firearms and/or ammunition pursuant to the terms stated in a temporary domestic violence injunction.
- The respondent must turn into law enforcement all firearms and/or ammunition pursuant to the terms of the permanent domestic violence injunction.
- The court may order the respondent to take part in a Batterers’ Intervention Program.
What circumstances warrant a domestic violence injunction?
Domestic violence injunctions are warranted if an individual allegedly engaged in the following actions:
- Took actions that led to physical injury to the petitioner due to committing a crime;
- Threatened the petitioner or engaged in physical actions that led him or her to believe his or her safety was at risk; and/or
- Made the petitioner reasonably believe that he or she will suffer harm at the hands of the respondent through violent acts.
Which individuals can file domestic violence injunctions in Miami-Dade County?
Florida law permits the following individuals to file domestic violence protective injunctions:
- A current or former spouse;
- A person currently residing with the respondent;
- A person related to the respondent by blood or marriage;
- A person who in the past was cohabitating with the petitioner and with whom he or she engaged in an intimate relationship; or
- The petitioner shares a child or children with the respondent, irrespective of whether or not they ever married or shared a residence.
Once a domestic violence action is entered, can it be dismissed or modified?
Courts will vacate, dissolve, dismiss, remove, or change a domestic violence injunction in certain situations. In order to alter or dismiss a domestic violence injunction, the moving party will present facts at a hearing which indicate that the facts used to support the issuance of the injunction are no longer relevant and that there is no valid reason for the injunction to remain in effect.
What must a domestic violence victim do to obtain an injunction for domestic violence?
Florida law requires that a petitioner seeking injunctions file documents called Petitions for Injunction for Protection Against Domestic Violence. Once filed, the judge will typically review the petition within a few hours after it has been filed. The judge makes a determination based on the information in the petition whether the facts meet the requirements for a temporary injunction. The judge cannot determine the veracity of the allegations brought forth in the petition prior to a hearing. If the judge issues a temporary injunction, then the sheriff will serve the respondent with the petition. Once served, the respondent must vacate a shared residence. In most cases, the sheriff gives the respondent some time to collect his or her belongings.
Fifteen days after the petition was filed, a “return hearing” will occur. The return hearing is the opportunity of the court to gauge the veracity of the allegations and to decide whether or not to grant the injunction and maintain the protections indefinitely or for a set amount of time.
What takes place at a domestic violence injunction hearing?
Once an individual files a petition for a domestic violence injunction, the court will likely set a date for a hearing. This is true even in cases where the judge did not approve the temporary injunction. The hearing presents the petitioner with the burden of proving that his or her allegations that he or she was the victim of domestic violence. At this time, the petitioner must bring to the court all evidence to support his or her case, which may include documentation, law enforcement, witnesses, and all other evidence necessary to establish that he or she was a domestic violence victim. The respondent also has the right to bring forth such evidence in order to defend against the allegations. Each party may cross-examine the other party and the other party’s witnesses who testified in the matter. The judge will then determine whether to deny or grant the domestic violence injunction.
What consequences exist if the respondent violates a domestic violence injunction?
In cases where the respondent is in violation of the domestic violence injunction, that individual will face criminal charges potentially resulting in jail time, monetary fees, and other consequences, including being held in contempt of court.
When can a petitioner extend a domestic violence injunction?
Under Florida Statutes Section 741.30, a party who is seeking an extension of a previously entered injunction must establish either that another instance or instances of domestic violence have occurred or that, the petitioner continues to reasonably believe that he or she is in imminent danger of becoming a domestic violence victim at the time of the extension being filed.
Domestic violence injunctions in Miami-Dade County, Florida FAQs:
What happens when an individual files a domestic violence injunction?
Once the petitioner files a petition, the judge decides whether to (i) deny the temporary injunction and grant a hearing; (ii) approve the temporary injunction and grant a hearing; or (iii) deny the temporary injunction without granting a hearing. Most judges in Miami, Florida grant the temporary injunction as a way to prevent something from happening in the interim before the hearing.
If a temporary injunction is entered, this means that the respondent cannot contact the petitioner until the time of the hearing. During the hearing, each party will have the chance to present their case to the court. If the claims raised in the petition are misrepresented, untrue, or exaggerated, the respondent’s attorney will present evidence indicating that the domestic violence injunction should be denied and the petition dismissed.
What will happen if the respondent does not challenge the allegations?
If a respondent chooses not to challenge the petition, then the petitioner will be able to present his or her case and the respondent will not have the opportunity to refute the evidence or challenge the claims made against him or her to the court. Injunctions have serious implications, and that is why it is important for the respondent to be present for the hearing and to challenge the petitioner’s allegations. Having an attorney present is also critical, as it could make the difference between freedom and extended imprisonment.
How long will the domestic violence injunction last?
A permanent injunction remains in effect until the court modifies it or when it expires. A domestic violence injunction can last for several years, depending upon the facts and circumstances of each case. If the domestic violence injunction is set to expire, the petitioner may seek to extend it at any time prior to the expiration date.
What will happen if the judge enters the domestic violence injunction once the hearing is completed?
In the event that the court approves the domestic violence injunction, then the respondent may not return to the residence he or she shares with the petitioner. If the parties have one or more children, the respondent cannot be in their presence until the court issues a determination on parenting time. Once the domestic violence injunction is set entered, the respondent will be required to surrender all firearms and ammunition. The individual will also be prohibited from purchasing firearms and ammunition. The respondent may also be barred from being in areas where the petitioner frequencies, such as a home, place of employment, school, or place of worship. The judge may also include a requirement in the order stating that the respondent must seek mental health treatment at his or her own expense.
What does “no contact” mean?
“No contact” means that the respondent cannot have any communication with the petitioner, whether directly, indirectly, or through a third person such as a family member or friend.
Can I appeal the entering of a domestic violence injunction?
Yes, the respondent can appeal the domestic violence injunction. A seasoned Miami criminal defense lawyer is in the best position to advise the respondent as to whether he or she should appeal the case.
What would be considered a violation of a domestic violence injunction?
If the petitioner receives contact from the respondent, or if the respondent causes harm to or threatens the petitioner, these are violations of the domestic violence injunction. There are instances where it is not exactly clear whether the respondent is in violation of the terms of the domestic violence injunction. For instance, the respondent could send an email or text of a non-threatening nature either directly to the petitioner or through a family member or friend. Or, the respondent innocently goes to a store where the petitioner happens to be present without his or her prior knowledge. This is why it is critical for the respondent to review the terms of the domestic violence injunction in order to avoid violating it.
What are the consequences for violating a domestic violence injunction?
If the respondent is in violation of an injunction for domestic violence, he or she will be deemed as committing a crime, which can be charged as a misdemeanor or felony. In essence, the respondent may face jail time, be forced to pay hefty monetary fines, and be held in contempt of court.
What is the impact of an injunction after it is expired?
Since a domestic violence injunction becomes part of the public record, it cannot be expunged. This means that even an expired injunction can affect the respondent’s life on a permanent basis. In particular, the respondent could struggle to find employment and possibly housing. The injunction could also bar the individual, on a permanent basis, from legally obtaining a firearm and ammunition. The respondent may also be unable to obtain a bank loan.
Will the domestic violence injunction against me be kept in public records?
Yes. Domestic violence injunctions are part of the public record, which means that a person who conducts a background check on the respondent can find out about it.
Should I hire a criminal attorney?
The purpose of a domestic violence injunction is to protect the petitioner from violence or harassment, which in Florida, are considered criminal actions. Sometimes the petitioner will seek the injunction during a family law case or other civil matter, but even still, it is important that the respondent hire a skilled Miami criminal defense attorney to represent him or her and assist in refuting any allegations. Having a lawyer present is not required, but it is critical that the respondent work with an attorney who can develop the strongest defense on his or her behalf. Even if you have a civil attorney, the intricate legal issues involved in a domestic violence injunction should be handled by an attorney who is best positioned to protect you in the criminal court system.
During the domestic violence injunction hearing, a Florida criminal defense lawyer will provide the judge with your explanation of why the petitioner filed the petition. For example, a petitioner can seek a petition based on falsified allegations as a way to harass the respondent, gain an advantage in a custody batty or family law case, and as leverage in a legal dispute or contract.
Protect Your Life and Your Liberty! Contact Musca Law Today!
Individuals facing an injunction for domestic violence often have a lot of questions. Injunctions can have severe consequences for a person’s life, including where they live and whether they can have contact with their children. If you are facing a domestic violence injunction, you do not have to go through this process alone. A Miami criminal defense attorney can help protect your rights. The award-winning lawyers at Musca Law will help challenge the allegations against you. Contact us today to arrange a consultation with one of our skilled and experienced attorneys. Call (888) 484-5057 to learn how we can fight to protect your rights.