Protective Injunction for Dating Violence Defense Attorneys in Miami, Florida (FL)
Defending Against Dating Violence Injunctions in Miami, Florida
What is an injunction?
In Florida, an injunction, also known as a “protective order,” “protective injunction,” or “restraining order,” is an equitable and legal remedy issued in the form of a court order against another person, known as the respondent. The petitioner is the individual who seeks the injunction against the respondent. If the respondent violates the injunction, he or she can face both civil and criminal consequences, including prison time, monetary fines, social stigma, and more.
There are five types of injunctions in Florida, which include:
· Dating violence
· Domestic violence
· Repeat violence
· Sexual violence
How are each of the above types of injunctions similar to one another?
- The petitioner is the person who seeks the injunction while the respondent is the person against whom the injunction is sought.
- The petition that is filed by the petitioner is a sworn document that must be signed in the presence of a notary or court clerk.
- In his or her discretion, the judge may order a temporary injunction prior to when the hearing on the petition takes place.
- The temporary injunction remains in effect until the time when the hearing is held.
- The county sheriff usually serves the respondent with the petition.
- The petition is usually served on the respondent by the county sheriff.
- Even if the temporary injunction is denied, a subsequent hearing can take place.
- The respondent must receive notice of the impending hearing.
- The petitioner and the respondent can bring forth witnesses to the injunction hearing to testify on their behalf.
- A judge may decide to issue a permanent injunction at the conclusion of the hearing.
- The injunction, once approved, remains in effect until it expires or the court changes it.
- If the respondent violates the permanent injunction, he or she can face civil and criminal penalties, including jail time and other serious consequences.
What makes a dating violence restraining order unique?
- The respondent and petitioner must be in a dating relationship within the last six months.
- The relationship must involve the expectation of sexual involvement or affection; it cannot be casual.
- The petitioner must prove that he or she is the victim of dating violence and has a reasonable fear that he or she is in imminent danger of being harmed once again by the respondent, or has a reasonable belief that he or she is in imminent danger of becoming a victim of dating violence.
- The victim, or a legal guardian or parent of a child residing at home, may file a petition for an injunction against the respondent.
- The injunction protects the petitioner from further violence and contact.
- The respondent may be required to surrender his or her firearms and ammunition.
What is dating violence? How does a person establish that they are the victim of dating violence?
Dating violence, in Florida, occurs when there is violence between the petitioner and the respondent who have had or have a “continuing and significant relationship of a romantic or intimate nature.” In a dating violence case, the petitioner must prove to the judge that (i) there is a dating relationship between him or her and the respondent, and (ii) he or she reasonably believes that he or she is in imminent danger of becoming a victim of dating violence or is a victim of dating violence.
Who can file a dating violence injunction?
Under Florida law, a parent or legal guardian of a minor (a child under the age of eighteen) or the victim himself or herself may file a petition for a dating violence injunction. A dating violence injunction can seriously impact the life of the respondent for many years, even permanently, which is why the courts are often hesitant to grant a permanent injunction. In every dating violence case, the petitioner has the burden of proving that he or she requires a dating violence injunction before a judge will issue an injunction against the respondent.
How can a dating violence injunction be vacated, dismissed, modified, changed, or dissolved, or removed once it is effective?
A dating violence injunction can only be modified, vacated, removed, dismisses, dissolved, or changed through the court system. In order to obtain relief from a dating violence injunction, the moving party must prove to the court that the facts that gave rise to the original dating violence injunction are no longer in effect such that keeping the injunction in place serves no valid purpose.
How does a victim of dating violence obtain a dating violence injunction?
Pursuant to Florida law, a petitioner must file at the court a Petition for Injunction for Protection Against Dating Violence. Within a few hours following the filing of the petition, the judge examines it. He or she then decides whether or not to issue a temporary injunction against the respondent based upon the allegations brought forth in the petition. It is important to understand however, that at this stage, the judge does not question the truth of the claims raised in the petition, as this is done during the subsequent hearing. If a temporary injunction is approved, the respondent will receive notice of the injunction by being served by the county sheriff.
The next step, once a judge decides whether or not to grant the temporary injunction, is known as the “return hearing,” which happens within fifteen days or less following the filing of the petition. Keep in mind that the judge has the discretion to deny both the temporary and permanent injunction.
What occurs at a dating violence injunction hearing?
When the petitioner files the petition, the judge may choose to schedule a hearing, even if he or she denies the temporary injunction. During the hearing, the petitioner has the burden of proof in that he or she must establish entitlement to a permanent injunction due to a fear of becoming a dating violence victim or due to being a current victim of dating violence.
During the hearing, the petitioner can present evidence to the court to prove that he or she needs a dating violence injunction. Such evidence can include witnesses, documentation, police officers, and other relevant evidence to support his or her claim. Both parties may cross-examine each other and all witnesses who have been called to testify. Once each party presents his or her evidence, the judge then determines whether or not to grant the permanent injunction against the respondent.
What occurs if the respondent violates the dating violence injunction?
The respondent may face criminal and civil charges should he or she violate the terms of the dating violence injunction. Such penalties include imprisonment and harsh monetary fines.
Under what circumstances can a dating violence injunction be extended?
An injunction for dating violence may be extended, if it has an expiration date, as long as the request for the extension is requested prior to when the injunction is set to expire. The judge, in deciding whether the extend the term of the injunction, does not require that the petitioner be the victim of new dating violence. In the alternative, the judge may consider the facts and circumstances that gave rise to the original dating violence injunction, as well as the subsequent actions of the respondent that causes the petitioner to have a reasonable fear that he or she will be the victim of dating violence once again.
Frequently asked questions about dating violence injunctions in Miami-Dade County, Florida
What occurs when a person files a dating violence injunction?
When the petitioner files the petition, a judge determines whether to grant the temporary injunction as well as schedule a permanent injunction hearing within fifteen days or less from the date the petition was filed; (ii) deny the temporary injunction and schedule a permanent injunction hearing; or (iii) deny the petition as well as a hearing.
The respondent is prohibited from having any contact with the petitioner until the hearing takes place should the judge issue a temporary injunction. If the allegations raised by the petitioner are false, misrepresented or exaggerated, the lawyer for the respondent will seek to have the petition dismissed and the permanent injunction denied.
What happens if the respondent does not challenge the dating violence petition?
Should the respondent fail to challenge the petition that has been filed against him or her, this means that the petitioner can bring forth his or her case without the respondent present to challenge the allegations raised against him or her. Because the consequences of a dating violence injunction are serious, it is vital that the respondent hire a seasoned Florida injunction defense attorney, attend the permanent injunction hearing, and refute the allegations raised in the petition.
What happens if the court grants the dating violence injunction after the hearing?
Once a court grants the dating violence injunction, the respondent is barred from having any future contact with the petitioner. The respondent must also leave a shared residence, if applicable, and surrender any guns and ammunition to law enforcement. The respondent will also be prohibited from being present at any place where the petitioner frequents, such as a place of worship, store, and workplace. The court can also order the respondent to seek mental health counseling and to attend an intervention program.
How long does a dating violence injunction remain effective?
A dating violence injunction remains in effect until the court modifies it or it expires, should it have an expiration date. A dating violence injunction can remain in effect for many years. Should the injunction be set to expire, the petitioner, in order to extend it, must return to the court to request an extension before it expires.
The dating violence protective order specifies that there is to be "no contact." What does “no contact” mean?
“No contact” means that the respondent cannot contact the petitioner at any time, whether indirectly, directly, or through another person such as a family member or friend.
How is a dating violence injunction violated?
A respondent violates a dating violence injunction if he or she harms or threatens to harm the petitioner. However, under certain circumstances, it is not fully clear to the respondent that he or she is violating the injunction. For instance, the respondent may send a non-threatening text to the petitioner to seek to communicate with him or her through another individual such as a friend or family member. Or, the respondent may be unaware that he or she came too close to an area where the petitioner is located. Accordingly, it is important that the respondent review and understand the terms of the injunction in order to avoid violating it.
What will happen if a person violates a dating violence injunction?
If a person violates a dating violence injunction, then he or she has committed a crime, which can be charged as either a misdemeanor or felony. In this instance, the respondent may face imprisonment, monetary fines, and other severe consequences.
Are dating violence injunctions part of the public record?
Yes. A dating violence injunction is public record, which means that anyone can access it through conducting a simple background check of the respondent.
Can a person appeal a dating violence injunction?
Yes. The respondent can appeal the issuance of a dating violence injunction.
Will an expired dating violence injunction still affect me?
Since a dating violence injunction becomes part of the public record, it cannot be expunged. What this means is that even an expired dating violence injunction can dramatically affect the respondent’s life for years to come. Specifically, it can affect a person’s ability to find a job or housing, and it may prevent him or her from getting a loan since a lender can search the public record for the respondent’s background information. The respondent may also be permanently barred from owning or purchasing a gun.
Do I need a criminal attorney to represent me if a petition has been filed against me?
The purpose of a dating violence injunction is to safeguard a person from violence and harassment. While there is no set requirement that the respondent hire an attorney, it is nonetheless critical that you work with a skilled Florida injunction defense attorney who is knowledgeable of the applicable law as well as the court system. Only an attorney can assist the accused in developing the strongest defense strategy possible in order to obtain a dismissal of the petition.
During the permanent injunction hearing, a skilled Florida criminal defense lawyer will challenge the allegations raised by the petitioner and provide the court with the respondent’s account of what brought forth the petition. For example, an attorney can assist the respondent in establishing that the allegations are false, misleading, or exaggerated.
What are the consequences of a dating violence injunction?
The consequences of a dating violence injunction are serious and can negatively affect the respondent on a permanent basis. That is why it is critical that you hire a Florida criminal defense lawyer who can tirelessly represent your legal rights and interests as well as develop the strongest defense strategy possible.
Some of the negative repercussions associated with a dating violence injunction are:
- The respondent can no longer contact the petitioner under any circumstances. This means that even mistaken or innocent contact can violate the terms of the injunction, which could result in criminal charges being filed against the respondent.
- Damage to your financial welfare and livelihood. Since a dating violence injunction is public record and is not eligible for expungement, anyone who conducts a background search can learn about the respondent’s criminal history. This could result in the respondent being unable to obtain a loan, he or she may lose out on a job opportunity, and have difficulty in finding suitable housing.
- Once a permanent injunction has been approved, the respondent must surrender all ammunition and guns to law enforcement. He or she may also be permanently barred from purchasing firearms in the future.
Contact Musca Law Today. Your Life and Your Liberty Depend Upon It!
Facing the prospects of a dating violence injunction can be frightening, as an active injunction can negatively affect your life in a multitude of ways. When you work a seasoned Miami criminal defense attorney at Musca Law, he or she will help you to challenge a dating violence 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.