Domestic violence injunctions are serious matters with serious consequences that can last a lifetime. Did you know?
- Any restraining order is a public record that can be uncovered by employers during the most basic background search which can impact your ability to get a job for the rest of your life;
- That record and the allegations made by the petitioner can never be sealed or expunged even if the judge finds the allegations to be unfounded after a hearing;
- While the injunction is in effect, you lose certain civil rights, including the right to possess a firearm;
- The judge can order you to pay child support or spousal support; and
- The judge can order you to have no contact or only supervised contact with your children.
Who can file an injunction?
Any man or woman claiming to be the victim of violence can apply for an injunction for protection against domestic violence or repeat violence (the “restraining order”) in Florida. The person filing the petition is called the “petitioner” and the person that is the target of the petition is called the “respondent.” The petition can be filed by anyone over the age of eighteen (18) to protect the petitioner and/or the petitioner’s children.
The court first decides whether it will grant a temporary injunction on an ex parte basis (after only considering the petitioner’s allegations). The court will then schedule a final hearing approximately 15 days later. During those fifteen days, attempts are made to serve the respondent with a copy of the temporary injunction and associated paperwork.
In many cases, the court will sign an order setting a hearing on the petition for injunction for protection without the issuance of an interim temporary injunction. In most cases, however, the allegations are sufficient to issue the ex parte interim temporary injunction. Even if the temporary injunction for protection is not issued pending the hearing schedules, an injunction CAN be entered after the hearing depending on the findings made by the Court at that time.
In many cases, the Respondent’s attorney can request a continuance for the return hearing in order to take the Petitioner’s deposition and further investigate the allegations. The hearing is then usually rescheduled for 15 days later during which time the interim temporary restraining order (if any) is continued. At the final hearing, the Respondent’s attorney can cross-examine the petitioner and present other testimony and evidence.
Reasons for not issuing the interim temporary injunction include a finding that the facts, as stated in the Petition alone and without a hearing on the matter, do not demonstrate that Petitioner is a victim of domestic violence, repeat violence, dating violence, sexual violence, stalking, elder abuse, or cyber-stalking.
In these cases, there is not a sufficient factual basis upon which the court can enter a Temporary Injunction for Protection, prior to the hearing. After the court schedules the hearing on the petition, the petitioner is generally permitted to amend or supplement the petition at any time to state further reasons why a temporary injunction, should be ordered, which would be in effect until the hearing scheduled in the order.
The Florida Supreme Court has approved Family Law Rule 12.980(b)(2), for an order setting hearing on the petition without issuance of an interim temporary injunction.
Consequences of an Injunction
If a final injunction for protection is granted against you in Florida, there are serious consequences that can result including the following:
- The injunction can be enforced in all 50 states;
- You may be required to leave your home, and prevented from seeing your child, or ordered to pay child support;
- You may not be able to purchase or possess a firearm or other weapon, including ammunition;
- The injunctions can have serious effects on your family law, divorce or child custody case;
- If it is alleged that you violated the order, you can be arrested for violation of repeat violence injunction or violation of domestic violence injunctions which is a first degree misdemeanor;
- You could be charged with stalking or aggravated stalking that might carry a “no bond” provision;
- You could be subject to deportation or your application for citizenship could be affected;
- Professional license may be affected especially for nurses or health care professionals, law enforcement officers, members of the military, lawyers or law school students, and licensed child care providers;
- Your employment applications may be affected, especially for jobs that require a background check, or the possession of a firearm;
- Your application for housing may be affected;
- Your admission to universities, colleges, or the military may be affected; and
- Your eligibility for certain scholarships and/or federal grants may be affected.
Federal Law Prohibits Possessing a Firearm or Ammunition after an Injunction
Federal law, 18 U.S.C.A. Section 922(g)(8-9), prohibits any person from owning, possessing or using a firearm or ammunition under the following circumstances:
- If the man or woman has been convicted of any misdemeanor act of domestic violence, including domestic assault or domestic battery; or
- If the man or woman is the subject of a court order that does one of the following:
- Was granted after the person received notice and had the chance to participate before the order was granted;
- Provides for some kind of restraint of the individual from stalking, threatening or harassing a domestic relation, or if the order prevents any actions that would place another domestic relation in reasonable fear of bodily injury or harm;
- Provides a finding that the person is a credible threat to the safety of the domestic relation or
- Prevents the use of physical force against the domestic relation that would reasonably be expected to cause bodily harm.
Repeat Violence Injunction
In order to file a restraining order petition for repeat violence in Florida, a person must claim to have been a victim of two acts of violence or stalking committed by another. At least one of those incidents must have occurred within the last six (6) months. The person filing the petition need not show that the relationship is “romantic” or “domestic.” Thus, the motion can be filed by neighbors, co-workers, or former friends.
Under Florida Statute Section 784.046(1)(b) and (2)(a), the respondent must have committed two acts of violence or stalking on two separate occasions, one of which must have occurred within the last 6 months. These types of restraining orders are the most prone to abuse and the most likely to be overturned on appeal.
Injunctions for Dating Violence
Dating violence under Florida law refers to violence between two individuals involved in an intimate or romantic relationship that was significant and continued for some extended period of time within the last six months.
Dating violence does not include ordinary relations, whether business or social, between two individuals who did not engage in or who had an expectation of engaging in intimate or sexual relations. An order for protection from dating violence is only appropriate when a battery, assault, stalking, kidnapping or false imprisonment allegation is made.
Injunctions for Sexual Violence
Sexual violence under Florida law refers to at least one incident of sexual battery, or any other forcible felony involving a sexual act or an attempted sexual act, regardless of whether the parties were domestically related.
Injunctions for Stalking
The Petition for Injunction for Protection against Stalking requires the Petitioner to disclose any reasons why the Petitioner believes he or she is a victim of Stalking including whether:
- The Respondent committed stalking against the Petitioner;
- The Respondent previously physically abused, cyberstalked, stalked, harassed, or threatened the Petitioner;
- The Respondent threatened to harm Petitioner or a family member or other person closely associated with the Petitioner;
- The Respondent intentionally injured or killed a family pet;
- The Respondent used, or threatened to use, against Petitioner any weapon such as a gun or knife;
- The Respondent has a criminal history involving violence or the threat of violence; and/or
- The Respondent has another order of protection issued against him or her previously from another jurisdiction; if known.
In the petition, the Petitioner is also instructed to give a description of the specific incidents of stalking or cyberstalking. For cyberstalking, the Petitioner is instructed to include a description of all evidence of contacts and/or threats made by the Respondent in voice messages, texts, emails, or other electronic communications.
Temporary Injunctions are Usually Granted
After the person claiming to be the victim of domestic or repeat violence files a petition in Florida, the paperwork is submitted to the judge. If the court grants the request, the injunction for protection or restraining order will be granted on a temporary basis until the respondent can be served and appear at a hearing to address the accusations.
The time and date of the hearing will be written on the notice. The County’s sheriff’s department will then serve you with the injunction for protection or restraining order.
At the hearing for the restraining order in Florida, the judge will hear testimony from the petitioner and respondent. The judge can grant the restraining order, continue the restraining order hearing, or dismiss the restraining order. The court has broad discretion to fashion a restraining order or domestic violence protective order which can include the following requirements:
- A provision that prevents you from contacting the alleged victim at the alleged victim’s home, place of employment, child care facility, school, or other location;
- Provides that you cannot go within a certain number of feet of the alleged victim;
- A “no-contact” provision that prevents you from calling, e-mailing, texting, or using a third party to contact the alleged victim;
- A provision which requires you to pay the petitioner money on a monthly basis as temporary child support; and
- A provision which provides for the circumstances and times at which you can visit your child, called a temporary child visitation order.
The restraining order under Florida law will stay in effect until it expires, or is dismissed or modified by the court.