Domestic Violence Injunctions in Florida
It should come as no surprise that intense emotions often accompany the end of a relationship. Some spouses who find themselves involved in divorce proceedings may be angry, sad, frustrated, (and yes, in some cases, happy and relieved). Sometimes, though, these intense emotions can lead one spouse to try and physically harm or otherwise abuse the other spouse. In situations where one spouse is either being abused by the other, injunctions are available to help protect the abused spouse.
An injunction – also known as a restraining order is, essentially, a court order that prohibits one person from taking certain actions. In the context of divorce and domestic violence, the court can issue orders that prohibit the abusing spouse from taking certain actions against the other ex-spouse or others. The court then has the power and ability to enforce these orders if the ex-spouse chooses to violate these orders. Not only this, but violating a protective injunction can also result in criminal charges and can affect custody determinations.
Florida statutes are specific as to who may apply for these injunctions, the procedures that are to be followed when applying for them, and what relief is – and is not – available.
Types of Injunctions
In addition to an injunction prohibiting domestic violence, Florida law allows for other types of injunctions as well, including:
· Repeat violence injunctions, available where there have been two incidents of violence or stalking (one of which must have occurred within six months of the filing of the petition). this type of injunction does not require a domestic relationship between the two parties. They can be complete strangers other than the allegations of violence.
· Sexual violence injunctions, available where certain behavior that would constitute certain criminal sexual acts are committed. It does not matter if criminal charges are actually filed or if those charges are reduced or dismissed by the prosecutor.
· Dating violence injunctions, available to protect those in who have a “continuing and significant relationship of a romantic or intimate nature” from violence.
. Stalking injunction, available to protect against physical stalking, cyberstalking, harassment, and other similar acts.
Who Can Apply for a Domestic Violence Injunction?
Florida Statute 741.30(1)(a) states that a “family or household member” who is the victim of domestic violence or who has “reasonable cause” to believe that he or sheis in imminent danger of becoming the victim of domestic violence may file for an injunction for protection against domestic violence. The person filing for the injunction is known as the “petitioner.” This seemingly simple statement uses specific terms to precisely describe who may and who may not file for an injunction.
First, the person must be a “family or household member.” This does not necessarily mean that the two people must have been or must currently be spouses. “Family or household member” includes individuals who are or were spouses, as well as individuals related by blood or marriage. The definition also includes people who were residing together in a single dwelling unit as a if they were a family, or individuals who have a child in common. Part of the petition (that is, the application) for an injunction for protection against domestic violence requires the individual seeking the injunction to describe the nature of the relationship between the parties. While this does not mean that the victim and the aggressor must have been married, this does mean that, except in cases where the parties have a child in common, the two individuals must be either residing together presently or must have resided together in the past in the same single dwelling unit.
Next, the person must be a victim of domestic violence or one who 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. This also includes actions 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.
In addition, the threat of becoming a domestic violence victim must be “imminent,” that is, immediate. A mere threat that doesn’t contain any language suggesting it will be carried out in the near future (such as “I’ll see you in court”) may not be enough to support an injunction. The buzz phrase for this is “words only are not enough.” Of course there is a fine line between words and actions. That is a difference you must be prepared to prove in court by discussing the entire set of facts and circumstances.
It is not necessary for either the petitioner or the person against whom the injunction is sought to have an attorney represent them.
How Do I Apply for a Domestic Violence Injunction in Florida?
A domestic violence injunction is meant to be easy to acquire and can be obtained from the circuit where either the petitioner resides or where the domestic violence occurred. That is, if Sarah left her house with Josh because of domestic violence and moved several counties over (and into a new judicial circuit), Sarah can either file her petition in the circuit in which she is presently residing or in the circuit where the domestic violence occurred.
Circuit courts are to have forms available for petitioners to complete when applying for an injunction, and the court’s staff is required by statute to assist petitioners in completing these forms. There is no filing fee that needs to be paid in order to ask for a domestic violence injunction. The petitioner completes the form and swears to the accuracy of the information. In other words, deliberately providing false information on a petition for an injunction can result in the petitioner being charged with perjury.
What Happens After I File for an Injunction?
After a petition for an injunction for protection against domestic violence is filed, the court must first determine if there is an “immediate and present danger” of domestic violence. If such is found, then the court may issue “ex parte” orders. The court will consider your petition on a one-sided basis. If the facts and circumstances you wrote about satisfy the injunction statute then the court will quickly grant the injunction in that ex-parte order. These are orders entered by the court without the other party against whom the orders are entered being present. These “ex parte” orders are temporary but may:
· Tell the other party (the “respondent”) not to engage in acts of domestic violence;
· Give the petitioner use and possession of the marital residence; or
· Provide for a parenting plan or award up to 100% of time-sharing to the petitioner;
Regardless of whether ex parte orders are entered, the court will always schedule a hearing in order to determine whether an injunction for protection from domestic violence should be entered. This is a hearing at which both the petitioner and respondent are to be present. After the hearing, the court can enter orders such as those:
· Telling the respondent not to engage in acts of domestic violence;
· Giving the petitioner use and possession of the marital residence;
· Provide for a parenting plan or award up to 100% of time-sharing to the petitioner;
· Establish a temporary child support award;
· Order the respondent to treatment such as a batterer’s intervention program, counseling services, or other similar treatment;
· Referring the petitioner to a certified domestic violence center; and
· Any other relief that the court deems necessary to protect the petitioner.
What if The Respondent Violates the Injunction?
The initial injunction is a civil process – rather than a criminal process. But a violation quickly causes the case to cross over into the criminal process realm. Violating an injunction for protection against domestic violence can carry severe consequences. Violating an injunction is a first-degree misdemeanor and is punishable by up to $1,000.00 in fines and up to 1 year in the county jail. Repeat violations can result in more severe charges, some of which may be considered felonies and can result in incarceration in a state prison.
How Does an Injunction Interact with Other Criminal Charges?
Where the respondent
has engaged in acts of violence and, because of that, the petitioner has applied for an injunction, the respondent may not only be faced with an injunction but may also face criminal charges as well. For instance, if Josh slapped Sarah in their home and as a result Sarah filed for an injunction, Josh can face battery charges and be served with a domestic violence injunction. When someone is arrest for battery the court will automatically enter a no-contact order regarding the arrested person and the victim. But that no-contact order can go away quickly and it is best to also pursue the civil injunction.
Oftentimes an injunction will be granted long before the criminal case is resolved. A finding of guilt as to the underlying charge (battery, assault, stalking, etc.) may supply evidence to the court that an injunction for protection from domestic violence is appropriate. However, if the respondent is found not guilty of the underlying criminal charge, this can be used by the respondent to show that the injunction is not necessary.
How Does an Injunction Affect My Custody Case?
As noted above, as part of the injunction orders, the court can enter orders regarding parenting time arrangements. This is true even if there are already parenting time orders in place. Thus, if Sarah and Josh had a parenting time agreement by which Josh and Sarah would have their child on alternating weeks, and Sarah then files for a domestic violence injunction, this parenting time agreement can be either modified by the court or discontinued altogether.
A parenting time agreement entered as part of a domestic violence injunction remains in place under the domestic violence injunction expires or until the court enters different orders. Florida statutes require judges to consider past domestic violence when they are weighing implementation of parenting plans. That one fact means an injunction can drastically alter the course of a custody case, or a divorce case.
When Does an Injunction Expire?
A temporary injunction entered ex parte typically lasts only a matter of days and is only meant to provide protection until a final hearing can take place. The court can decide to provide a set period of time at which a final injunction will expire (such as one year), or the court can decide not to set an expiration date. In such a case, either party can later ask the court to end the injunction.
Conclusion on Injunctions / Restraining Orders
The end of a relationship or marriage can be an emotionally charged time in the lives of individuals. While many individuals can successfully navigate this time in their lives with the assistance of family and friends, counseling, or other types of treatment, unfortunately some individuals believe that violence or threats of violence are the way to resolve the situation. When this happens, those who are abused or are in fear of being abused should be encouraged to seek an injunction for protection from domestic violence. While an attorney is not necessary in order to get an injunction, the assistance of an attorney can help you in convincing the court to award an injunction for the maximum length possible, give you use and possession of the marital residence, award you a favorable parenting plan, and other beneficial provisions.
If you have been served with a domestic violence injunction, it is important that you read and fully understand the terms and conditions of the order. Violating the order can result in serious legal consequences. While you do not need an attorney to represent you at a hearing for an injunction, it may be advisable to hire an attorney. The court can enter orders that can have a significant impact on your ability to stay in the marital home, visit with your children, and your freedom of movement.