Domestic Violence Injunction Defense Lawyer in Naples
An injunction, also known as a “restraining order,” “protective order,” or “protective injunction,” is an order issued by a court that compels an individual to do or not do certain acts. If a person violates an injunction, then he or she may face civil and criminal penalties, including being held in contempt of court, jail time, and steep monetary fines.
In the State of Florida, there are five types of injunctions, which are as follows:
- Domestic violence
- Repeat violence
- Dating violence
- Sexual violence
How are the above injunctions the same?
- The person against whom a petition for an injunction is filed is known as the respondent. The party who files the petition for an injunction is known as the petitioner.
- The petition is a sworn document, meaning, that it needs to be notarized or signed in the presence of a court clerk.
- The judge may choose to grant a temporary injunction when the petition for injunction is filed by the petitioner.
- Temporary injunctions are effective until the date of the final hearing.
- In most cases, the local sheriff serves the petition on the respondent, giving him or her notice of the final hearing.
- The judge can choose to hold a hearing even if the temporary injunction was denied.
- At the end of the hearing, the judge can choose to issue a permanent injunction against the respondent.
- A permanent injunction is effective on a permanent basis, unless one of the parties returns back to court to alter, modify, or dissolve it.
- If the respondent violates the terms of the injunction, he or she may be subject to serious consequences, including being held in contempt of court, prison time, and harsh monetary fines.
How is a domestic violence injunction unique?
- In order to successfully file a petition, the petitioner and the respondent must be members of the same household who currently live together or have lived together, share a child in common (if so, the respondent and petitioner do not have to reside together), or have a familiar relationship.
- The petitioner must establish that he or she is a domestic violence victim, or has a reasonable fear of becoming a victim.
- Injunctions for domestic violence protect the victim from violent actions as well as contact and may also protect the child or children of the relationship.
- The respondent must vacate the home of the petitioner, if it is a shared dwelling.
- The respondent cannot come within a certain number of feet of the petitioner’s residence.
- The petitioner may remain in the shared dwelling with the child or children of the relationship, if applicable.
- The petitioner may have custody over the parties’ child or children for a certain period of time.
- The respondent may be required to pay child support.
- The respondent may be forced to surrender ammunition and firearms to police should a temporary injunction be granted.
- The respondent must surrender ammunition and firearms to police should a permanent injunction be granted.
- The court may require the respondent to seek mental health treatment.
When is a domestic violence injunction warranted?
The petitioner can obtain a domestic violence injunction if the respondent:
- Caused the petitioner to sustain physical injuries due to the commission of a crime;
- Made threats to the petitioner or engaged in behavior that caused him or her to fear for his or her safety; and/or
- Caused the petitioner to have a reasonable belief that he or she will sustain physical harm caused by the respondent’s violent actions.
Who can file a petition for a domestic violence injunction?
- A former or current husband or wife;
- An individual who lives with the respondent;
- An individual who is the petitioner’s blood relative or is related by marriage;
- An individual who formerly resided with the petitioner and with whom he or she was involved in an intimate relationship; or
- An individual who shares a child or children in common with the petitioner.
Can a domestic violence injunction be changed?
A court will dismiss, vacate, remove, dissolve, or otherwise alter a domestic violence injunction in certain circumstances. A party to the injunction must submit factual evidence to the court indicating that the facts supporting the need for an injunction no longer exist and that there is no plausible reason for the injunction to remain effective.
How does a victim of domestic violence obtain an injunction?
In Naples, Florida, an alleged victim of domestic violence must file a document known as a Petition for Injunction for Protection Against Domestic Violence. Once the petition is submitted to the court, the presiding judge reviews it shortly thereafter, and renders a determination as to whether the facts therein support the need for a temporary injunction. At this stage, the judge does not determine the truth of the facts alleged in the petition, as this is done during the final hearing stage of the case. Once the temporary injunction is approved, the local sheriff serves the respondent with the petition. At this juncture, the respondent must leave the premises if it is shared with the petitioner.
Fifteen days after the petition is filed, a final hearing, referred to as a “return hearing” takes place. This is where the parties may submit evidence, including witness testimony, to the court. The judge, at this phase, determines the veracity of the allegations raised by the petitioner in determining whether to grant or deny the permanent injunction.
What happens during a return hearing?
During a return hearing, the petitioner has the burden of establishing that he or she is entitled to a permanent injunction. At this time, the petitioner must submit evidence to the court, which may include, without limitation, witness testimony, documentation, and law enforcement testimony to prove that he or she is a victim of domestic violence. The respondent may also submit evidence to the court in order to defend himself or herself against the claims 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 decides whether to grant or deny the permanent injunction.
What are the legal repercussions if a domestic violence injunction is violated?
If the respondent violates the domestic violence injunction, he or she could face imprisonment, harsh monetary fines, and other repercussions, including being held in contempt of court.
Can a domestic violence injunction be extended?
Pursuant to Florida Statutes Section 741.30, a person who seeks to extend an injunction, if it is set to expire, must present evidence to the court that he or she has once again become a victim of domestic violence or has a reasonable fear that he or she will become a victim of domestic violence.
Frequently asked questions about domestic violence injunctions in Collier County, Florida
What happens when a person files a petition for a domestic violence injunction?
Once a petition is filed, the judge determines whether to grant a temporary injunction and schedule a hearing, deny the temporary injunction and schedule a hearing, or deny the injunction without granting a hearing. Most judges in Naples, Florida approve a temporary injunction to prevent further threats or acts of violence from occurring before the return hearing.
Should a temporary injunction be approved, the respondent cannot have any further contact with the petitioner until the date of the return hearing. During the return hearing, each person will have the opportunity to present his or her case to the court. If the allegations in the petition are untrue, misrepresented, or exaggerated, the respondent’s attorney will seek to have the petition dismissed and the injunction denied.
What if the respondent fails to contest the claims raised in the petition?
If a respondent decides not to contest the facts raised in the petition, the petitioner will have the opportunity of presenting evidence to the court without it being challenged. Because injunctions have serious consequences, it is critical for a respondent to hire a seasoned Naples domestic violence injunction defense attorney as soon as possible to contest the petition and seek a dismissal of the case.
How long is a permanent injunction in effect for?
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?
If the court approves a domestic violence injunction, then the respondent must vacate a shared dwelling. If the respondent and petitioner 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 turn into police all ammunition and firearms. He or she will also be barred from obtaining ammunition and firearms. The respondent will also be ordered to keep away from areas where the petitioner frequents, such as a workplace, place of worship, or school. The judge may also require 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 under any circumstances with the petitioner, whether in a direct or indirect fashion, or through a third party such as a friend or family member.
Can a domestic violence injunction be appealed?
Yes, a domestic violence injunction can be appealed. A skilled Naples domestic violence injunction defense lawyer can advise you as to your options in this regard.
How is a domestic violence injunction violated?
If the petitioner is contacted by the respondent, or if the respondent harms or threatens to harm the petitioner, these are clear violations of the terms of the injunction. There are situations where it is not fully clear as to whether the respondent violated the injunction. For example, the respondent could innocently send an email or text message to the petitioner or his or her family members. Or, the respondent unknowingly goes to a store where the petitioner is present. This is why it is vital that the respondent read the terms of the injunction in order to prevent violations.
What consequences are associated with violating a domestic violence injunction?
If the respondent violates the terms of a domestic violence injunction, he or she will be charged with a crime. Specifically, the court may impose jail time and monetary fines. The judge can also hold the respondent in contempt of court.
What are the repercussions of an injunction after it expires?
A domestic violence injunction becomes public record after it is entered, and is not subject to expungement. This means that even if an injunction has expired, a person can learn that one has been issued against the respondent. This may affect the respondent’s ability to obtain a bank loan, find gainful employment, and find suitable housing. The respondent will also be permanently barred from obtaining ammunition and firearms.
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 required for a person to hire a lawyer, it is a smart move to do so. Only a seasoned attorney knows the applicable law, the ins and outs of the courtroom, and has a good relationship with the judge and prosecutor.
A domestic violence injunction means that a person will be subject to harsh 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 hearing, a skilled Naples 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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