Fighting a Domestic Violence Injunction In Florida

Domestic violence is a hot topic in society these days.  It’s right up there with the opioid epidemic, sexual assault on college campuses, and sexual harassment in the workplace.  The publicity of domestic violence has led to additional safeguards for “victims” of domestic violence through legislation.  In Florida, Section 741.30, Florida Statutes, provides the framework for obtaining an injunction (also known as a protective order, retraining order, or no contact order).   Florida law allows for injunctions to prohibit contact, prohibit violence, grant exclusive possession of property like cars and homes, order evaluations or classes, and establish timesharing and support obligations (in the case of parties that share children and/or are married).

 

The process for a domestic violence injunction begins with the filing of a petition by the “Petitioner”

The Petitioner is the person asking the Court for protection against the Respondent (the person who is alleged to have committed violence, stalking, or harassment).   The petition is filed with the Circuit Court in the county where either the Respondent or the Petitioner lives.  Most Circuit Courts in Florida – like Duval County where I practice – have special sections in the Clerk of Courts’ office that assist the Petitioner in completing the petition.  The petition must detail the reasons the injunction is sought, provide a factual basis, and ask for certain relief.  Relief can include no contact, no violence, timesharing, custody of a residence, and support.  The petition must be sworn to and notarized by the Petitioner.  A judge will then do a cursory review the of the petition and likely order a Temporary Injunction.  The Temporary Injunction will then be served in person on the Petitioner, normally by the local sheriff’s office.  Once the Temporary Injunction is served, it becomes enforceable by law enforcement – a violation by the Respondent is a criminal offense.  The Circuit Court must set a court date for a hearing on the petition for within 15 days, though it can be continued for “good cause.”  However, there is no automatic dismissal if the hearing does not occur or is continued beyond the 15 days.

If the Petitioner fails to appear for the injunction hearing and does not file a continuance, the injunction will be dismissed by the judge.  If the Respondent fails to appear, assuming the petition has enough information in it to support a basis for the injunction, then a final, permanent injunction will be issued.  If both the Respondent and Petitioner appear, and both agree to the injunction, the judge will normally order the injunction become permanent.  A Respondent should not agree to an injunction without first speaking to a lawyer because it has significant legal consequences.

If the Respondent objects to the imposition the injunction, he or she will have a hearing set, normally for that day.

The judge will determine whether the weight of the evidence establishes the need for the injunction.  The Petitioner has the burden to show that he or she is either a victim of domestic violence or has reasonable cause to believe he or she is in imminent danger of becoming a victim of domestic violence. Domestic violence means any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any other criminal offense that causes physical injury or death to a family or household member and is brought about by another family or household member.  “Reasonable cause” suggests that there should be objective facts to support the belief that the petitioner is about to become a victim of domestic violence.  These facts can include a history of violence between the parties, any threats that have been made by the respondent, whether law enforcement has been called, or any other similar circumstances.  Courts generally look for evidenc such as: attempting to harm the petitioner, his or her family members, or individuals closely associated with the petitioner (such as close friends, work associates, etc.); threatening to kidnap, conceal, or harm the petitioner’s children; intentionally injuring or killing the petitioner’s pet; using, or threatening to use, dangerous weapons like guns and knives;  a criminal history involving violence or threats of violence; if another state or jurisdiction had previously issued a domestic violence injunction (sometimes called an order of protection) against the person; destroying personal property belonging to the petitioner; or other threatening or alarming behavior.

Both the Petitioner and Respondent will be provided the opportunity to provide testimony to the judge, and cross-examine the other party.  Each side can call witnesses and present evidence.  In short, it is mini-trial, at the end of which, from the bench, the judge will issue the decision regarding 1) whether to grant or dismiss the petition; if granting the petition, for how long to impose an injunction; and, if granting the petition, what terms will be ordered in the injunction.

The stakes can be high for an injunction hearing, especially where the parties have a child in common.  There is also the impact of the Lautenberg Amendment.

A domestic violence injunction can have long-lasting consequences.  If possible, the Respondent should have an attorney.

Unfortunately, because the courts view injunctions as a civil matter, there is no right to a public defender or free attorney.  However, Petitioners often get free attorneys through domestic violence programs at Hubbard House or Legal Aid.  This gives the Petitioner an advantage over the Respondent if the Respondent does not retain an attorney.  If the Respondent cannot afford an attorney, it is wise that he or she spend time preparing a case focused on demonstrating the allegations made in the petition are false, exaggerated, or simply don’t meet the definition of domestic violence or serve as a basis for a reasonable cause to believe there is imminent danger of domestic violence.

Attorney Patrick Korody is a former Navy JAG who practices criminal and military law in Duval County, Florida.  He represents Respondents in injunction hearings in St. Johns, Duval, Nassau, and Clay counties.  He offers a free case consultation and can be reached at 904.383.7261.

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