Restraining Orders in Florida
Domestic violence is an extremely serious issue, and can give grounds for a restraining order, also known as a domestic violence injunction. Both names refer to the same Florida procedure. Domestic Violence Injunction Court is especially busy in Florida, with dozens of daily cases filed in every Florida County. Restraining orders and domestic violence injunctions can have an earth-shaking effect on any divorce case involving custody and parenting issues. A restraining order is free to file, is quick in its effect, and can give an incredible tactical advantage to the filing party. That is why it is important to hire competent legal help. The fall out from a granted or denied injunction can last far into your divorce or paternity case.
Situations That Qualify for Filing a Restraining Order
There must be a legally sufficient incident of domestic violence. Domestic violence is defined as abuse against a person living in one’s household, especially a member of one’s immediate family, which includes but is not limited to the following types of conduct:
• destruction of property
• kidnapping, criminal restraint, or false imprisonment
• lewdness or sexual assault
• criminal sexual contact
• criminal mischief
• criminal trespass
How Injunctions / Restraining Orders Affect Divorce and Custody Cases
There are numerous triggers for domestic violence, and divorce is a major one. In fact, the danger of serious violence against another can be initiated when a person acts on a decision to leave an abusive relationship.
Florida is one of the many states that has abolished fault as a basis for obtaining a divorce. The only thing you have to establish is that the marriage is irreparably broken. Because Florida divorce cases are no-fault, it is not necessary to allege grounds for a divorce so allegations of domestic violence will not influence the judge regarding the decision to terminate marital status. However, allegations of violence and fault can factor into decisions involving custody proceedings, child visitation, child support, alimony, and the equitable distribution of property.
With respect to child custody disputes, courts may prevent parents with a known history of domestic violence from exercising significant parenting time or even engaging in unsupervised visitation with their children. Florida courts will look to put the safety and well-being of the child first, often limiting the rights of the abusive parent. They also will try to protect the abused spouse, co-parent, or unmarried significant other from further violence.
Although the safety of the domestic violence victim and his or her children is the most important reason to take action, such as filing for divorce and/or seeking restraining orders,there are other reasons that victimized parents should not simply tolerate such abuse. A victim who does not take action to shield a child from domestic violence may find that this decision creates problems in future custody disputes or legal proceedings involving children from other relationships. If you are involved in a future complaint with Child Protective Services (CPS) or a subsequent custody dispute, the issue of failing to protect a child from an environment involving domestic violence may be considered by the court. Parents have an obligation to protect children from abuse and exposure to detrimental influences that include witnessing acts of family violence.
While allegations of domestic violence ordinarily have merit, some accusers bring false charges against their spouses or partners in order to gain an advantage in divorce or custody proceedings. A false allegation of domestic violence is incredibly serious and can dramatically impact a judge’s decision in family court on issues of child custody and parenting time. In some cases, husbands may claim that their wives are the abusers. The wrongly accused husband or wife can be ejected from his or her home, prevented from seeing the party’s children, and even arrested based on fraudulent allegations.
Many Florida restraining order requests based on allegations of family violence against a spouse, co-parent or girlfriend are ignored by the party against whom the allegations are asserted based on the conviction that the claims are meritless. However, failure to oppose a restraining order means that there will be no evidence offered to rebut the evidence presented by the alleged victim. In this situation, there is a high probability that the restraining orders will be granted which can have a dramatic impact on an individual’s future employment, housing, parent-child relationship and certain constitutional rights so advice from an experienced Florida Family Law Attorney is imperative. Whether you are the victim of domestic violence or someone falsely accused, the court’s determination regarding the truth of such claims and the need for restraining orders will play a major factor in the outcome of your case.
Court Procedure – How Do You Get an Injunction / Restraining Order?
In Florida a Petition for Protection Against Domestic Violence is given priority consideration by the court. A judge will normally review the Petition within several hours of filing. If a “one-sided” reading of the Petition satisfies the legal requirement for an injunction, the judge will sign the order and grant the injunction. The judge will not try to figure out truth or lies during that first reading. The judge’s decision to grant or deny the injunction is a simple “go” or “no-go” process. If the judge grants the domestic violence injunction the next step is to have the sheriff serve the order on the Respondent. After the papers are served that person must immediately vacate the house. The sheriff will normally give a short time to remove personal effects. After that moment, it becomes illegal for the Respondent to come near the Petitioner.
The next step is called a “return-hearing.” That hearing is normally scheduled 2 weeks in the future. The return hearing on the domestic violence injunction is an opportunity for both sides to argue their case. The return hearing is the moment of truth – where the court decides whether to throw out the injunction or to keep it in place for a certain period. It is essential to have legal help at that hearing. There is only one bite at the apple in domestic violence court. Once the domestic violence injunction is in place the cost and complexity of removing it become immense.
What Happens When You Violate an Injunction / Restraining Order?
The complexity and seriousness of the situation ramps up any time you violate the order. Even though a domestic violence injunction is a non-criminal procedure, violations of the order will probably result in criminal charges. That can involve the full range of consequences including jail time. Each violation also results in more damage to any ongoing custody cases.
The Type of Attorney Needed for Restraining Orders
Many people make the mistake of hiring a criminal attorney. If you have a potential divorce, paternity, or custody case – that is usually a poor decision. Many domestic violence injunction cases result in permanent loss of parenting rights. In less severe cases, an injunction can severely limit future parenting time. It is essential to coordinate strategy between your custody case, and your injunction / restraining-order case.
We have a team of attorneys experienced in custody issues, domestic violence injunctions, and criminal domestic violence cases. Our legal team helps clients in New Port Richey, Clearwater, Dade City, Tampa, Orlando, Lakeland, and other Florida counties.
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Over the past 12 years Ayo & Iken has helped over 5,000 people just like you
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