How do I get an injunction? What does an Order of Protection do for me? Is a Restraining Order the right thing to do?
Domestic Violence Injunctions can be a powerful weapon in a divorce or child custody case. The stakes can be very high in a Domestic Violence Injunction hearing and can include access to your home, your safety, the ability to see your children, temporary support, your job and even your freedom. If you are seeking an Injunction or defending against an Injunction you need an experienced Domestic Violence Injunction attorney on your side. At Mario, Gunde, Peters, Rhoden & Kelley our attorneys have decades of experience helping clients with Injunctions.
Injunctions (sometimes called Restraining Orders) bring together criminal law, family law, and injunction law in a short high stakes hearing. Injunction hearings are held within 15 days of the initial Petition for Injunction so there is little time to prepare. Your Domestic Violence Injunction Attorney needs to know the law like the back of their hand and be able to put your case together in a few days.
Frequently people go to a Domestic Violence Injunction Hearing without an attorney. They may think they can just tell their side of the story to the judge and everything will come out alright. They may even try to prepare for the hearing by bringing a police report or a notarized letter from a witness. They are shocked and frustrated when objections to hearsay and relevancy are sustained and their case falls apart. To effectively present your case you need and experienced Domestic Violence Injunction attorney fighting for you.
In Domestic Violence Injunction cases there are two parties. First the Petitioner, this is the person who claims they are the victim of domestic violence and seeks to have an Injunction entered by the court. Second is the Respondent, this is the person who is accused of committing an act of domestic violence and against whom an Injunction might be entered.
If you are a Petitioner you should contact an attorney even before going to the Clerk of Courts’ office to fill out your PETITION FOR INJUNCTION FOR PROTECTION AGAINST DOMESTIC VIOLENCE. The Petition is your written statement, under oath, about what you say happened and is your basis for getting an Injunction. You only have one chance to get it right. Your statement can be used against you at the Injunction hearing, in a divorce, in child custody hearings, and in a criminal case. Before putting anything in writing you should retain one of Mario, Gunde, Peters, Rhoden, & Kelley’s experienced Domestic Violence Injunction attorneys. Come to our office in Cocoa or Melbourne and we will help you put together your written statement. We will also determine what witnesses will be helpful and what other evidence can be used such as photographs, texts, emails and criminal records.
Once filed the Court will review your Petition and do one of three things.
- Determine your Petition is legally insufficient to take action and your Petition is dismissed.
- Determine your Petition is legally sufficient in which case the Court will set a hearing.
- Determine an immediate and present danger of domestic violence exists and issue a Temporary Injunction Ex Parte.
If you are a Petitioner you want the Court to issue a Temporary Injunction Ex Parte.
This means the Court issues the Injunction without the other side (the Respondent) knowing. The first the other side will know of the Injunction is when they are served. The Injunction is effective when served. The Court has wide authority to include in the Injunction such relief as the Court deems proper. This is civil court so the Court cannot order the arrest of the Respondent.
Florida Statute 741.30 (5)(a) sets out three orders the Court can include in the Temporary Injunction.
- Florida Statute 741.30 (5) (a) 1. provides the Court may order the Respondent to not commit any act of domestic violence. This is just common sense and is a standard part of any Temporary Injunction.
- Florida Statute 741.30 (5) (a) 2. allows the Court to award temporary exclusive use and possession to the Petitioner of any dwelling the parties might share. This means the Respondent, once served, must leave the dwelling. Typically law enforcement will allow fifteen minutes to gather some personal belongings and vacate the dwelling. This can apply even if the Respondent owns the dwelling.
- Florida Statute 741.30(5) (a) 3. allows the Court to set a temporary time-sharing schedule for any children the parties may have together. The court could set a 50-50 schedule, award the Petitioner 100 percent of the time sharing, or issue no order at all. Typically the court limits the Respondent’s timesharing but nothing in the Statute prohibits the Court from awarding the Respondent majority or even 100 percent timesharing.
Other typical provisions of a Temporary Injunction include ordering the Respondent to stay 500 feet away from the Petitioner, from the Petitioners dwelling, and from the Petitioner’s workplace. The Respondent can be ordered to not contact or threaten the Petitioner in any way.
If the court does choose to issue a Temporary Ex Parte Injunction the Court must set a hearing on the Injunction within 15 days. The 15-day period starts when the court issues the Temporary Injunction and not when the Respondent is served. The Respondent could be served the day before the hearing and have little time to prepare.
If you are served with a Temporary Injunction contact Mario, Gunde, Peters, Rhoden & Kelley immediately. Our knowledgeable and experienced attorneys can work swiftly to put together an effective defense. We can determine the important facts of your case, subpoena witnesses, and gather documents in a few hours. Careful review of the Petition for Injunction can reveal that the Petition is legally insufficient and should be dismissed. A party can also request the hearing be continued beyond the 15 days in order to have more time to prepare. If the Court continues the hearing to a later date the Temporary Injunction remains in full force and effect.
Injunction or Restraining Order hearing are short trials. There is no jury and the Judge will determine what facts have been proven and the law to apply. A party can make an opening statement and witnesses are called and cross examined. The Rules of Evidence under Florida Statute 90 apply. The Petitioner is trying to convince the Court that they are either the victim of domestic violence or that they are in imminent danger of becoming a victim of domestic violence. The Respondent is trying to prevent the Court from reaching this conclusion. The Petitioner has the burden of proof to bring clear and convincing evidence before the court.
As provided in Florida Statute 741.30 (1) (f) neither party is required to be represented by an attorney. It is however, a very good idea to be represented by an experienced Domestic Violence Injunction Attorney. If the other party has an attorney and you do not you are at a significant disadvantage. If objections or motions are made and you do not know how to respond the Judge cannot help you. The Judge must remain impartial.
At the Injunction hearing the Court must consider all relevant facts. Florida Statute 741.30 (6) (b) lists ten factors giving the Court guidance on what to consider. This is in effect the Florida Legislators “talking” to the Judge and telling the Judge what to look for. Some Judges are unfamiliar with Domestic Violence Injunction hearings, as are many attorneys, and the statute helps narrow the focus of the hearing.
The factors are;
1. The history between the petitioner and the respondent, including threats, harassment, stalking, and physical abuse.
Prior acts are important. Judges will be concerned if there is a history of threats, harassment, stalking, and physical abuse. A long pattern of abuse is more serious than a single incident. Judges will also consider if there is a long gap in time between the claimed incident and the hearing. The further back in time the incident occurred the harder it will be to prove the Petitioner has a fear of imminent violence.
2. Whether the respondent has attempted to harm the petitioner or family members, or individuals closely associated with the petitioner.
The paragraph says “attempted to harm” but it also includes actually harming the Petitioner or other people close to the Petitioner. It is not uncommon for someone in a rage to attack people close to the Petitioner. These people can make excellent witnesses.
3. Whether the respondent has threatened to conceal, kidnap, or harm the petitioner’s child or children.
Notice the paragraph says, “the petitioner’s”. This could mean the children the parties have in common or children that are not related to the Respondent. If you are the legal parent of a child you can normally take the child and even conceal the child without being guilty of kidnapping the child. However each situation is different and concealing a child for a short period of time may be reasonable to protect the child from harm. The same amount of time the child is concealed may be unreasonable, or even a crime, if the intent is to terrorize the other parent.
4.Whether the respondent has intentionally injured or killed a family pet.
People who are angry strike out in a variety of ways. Short of hurting a person this is a factor that can really get a Judge’s attention. In some families the pet is loved as much, and yes, sometimes more, than other family members.
5. Whether the respondent has used, or has threatened to use, against the petitioner any weapons such as guns or knives.
The use of weapons in any violent situation is an escalation. The potential for physical harm is substantially increased. What was a simple misdemeanor battery can escalate to aggravated battery or even murder. Domestic violence situations are the leading cause of violent death for women. Judges know a deadly situation could result if someone is angry enough to pick up a weapon.
6. Whether the respondent has physically restrained the petitioner from leaving the home or calling law enforcement.
Physically restraining someone would include grabbing them, tying them with rope, standing in a doorway or hallway and not letting them pass. It could also include locking someone in a room.
Frequently during a Domestic Violence incident the aggressor will prevent the victim from calling the police by taking or destroying the phones. Taking or destroying a phone shows intent to control the other person. Abusers want to isolate their victims. It is compelling evidence to a judge if a Petitioner can prove they had been restrained or isolated.
7. Whether the Respondent has a criminal history involving violence or the threat of violence.
When hearing a Domestic Violence Injunction case a judge is trying to determine if violence has taken place or if the Petitioner has a reasonable fear that violence is imminent. It is powerful evidence if a Petitioner can show a Respondent has been convicted of violent crimes in the past. It is reasonable to be afraid of someone who is known to resort to violence. The best way to prove a violent history is to present the Court with a certified copy of the Judgement of Conviction. The court will also accept testimony about the Respondent’s reputation in the community for violence. If the Respondent is known to be a violent person it is reasonable to be afraid of them.
Sometimes a Petitioner will try to falsely claim a Respondent has a violent history when they do not. Objections for lack of personal knowledge, lack of predicate, assuming facts not in evidence, and hearsay can be made to limit the evidence.
8. The existence of a verifiable order of protection issued previously or from another jurisdiction.
If an order of protection has previously been entered by a Court the Petitioner should get a certified copy of the Injunction. A Court may not accept an uncertified copy (it is hearsay) or may not accept mere testimony that a previous order was issued.
9. Whether the respondent has destroyed personal property, including, but not limited to, telephones or other communication equipment, clothing, or other items belonging to the Petitioner.
An Injunction hearing is not a divorce hearing and the Court is not concerned about the value of the property destroyed. The Court will note the level of violence used to destroy the property. Smashing property with a baseball bat, throwing things against the wall, or setting property on fire, can cause a reasonable fear in another person. Pictures of destroyed property is good evidence.
10. Whether the Respondent engaged in any other behavior or conduct that leads the Petitioner to have reasonable cause to believe that he or she is in imminent danger of becoming a victim of domestic violence.
Florida Statute 741.30 (6) (b) is not intended to limit the evidence a Court can hear. Paragraph 10 is the catch-all that makes clear the Court can hear evidence about anything the Respondent has done that may cause the Petitioner to be afraid. Of course this can be limited if the Petitioner just wants to show the Respondent is a bad person. A skillful Domestic Violence Injunction Attorney will know when to make objections that evidence is not relevant or is outside the scope of the hearing.
You Need An Attorney for A Domestic Violence Injunction
If you have been served with a Petition and Notice of Hearing for a Domestic Violence Injunction, contact Mario, Gunde, Peters, Rhoden & Kelley immediately. There are many ways to fight back against a Petition for a Domestic Violence Injunction.
One way to fight back against a Petition for Domestic Violence Injunction is to convince the Court that the Petitioner is lying about the alleged violence because they want to gain an advantage in a divorce or paternity case. People who know how to work the system will file a false petition hoping to get custody of the children or get their spouse thrown out of the house. They then delay the divorce proceedings while trying to alienate the children from the other parent. The Injunction hearing is suddenly the most important part of a soon to be filed divorce or paternity action. Under F.S. 741.30(1)(c) orders entered in a divorce action can overturn provisions in the Injunction. However, it can take weeks or months to get a hearing in a divorce case and until such hearing the Injunction can remain in effect.
Another tactic is to defend against the Petition for Injunction by entirely avoiding the hearing. A Respondent may not contact the Petitioner, but an attorney can. Particularly in cases where there are underlying divorce or paternity issues a reasonable settlement offer may resolve all issues between the parties. Either party may initiate negotiations. Many divorce cases have been settled in the hallway waiting for an Injunction hearing to start.
Defending against an Injunction involves attacking a Petitioner’s credibility and motives. Some Petitioners are not afraid of a Respondent at all and just want to force the Respondent out of a dwelling. Some Petitioners hate the Respondent and just want to punish the Respondent. If a Respondent can show the Court these underlying motives, the Judge may doubt the Petitioner’s entire story.
Injunction hearings usually involve allegations of conduct that could be a crime such as assault, battery, stalking, or false imprisonment. Injunction hearings also may involve many of the same issues you find in a divorce. This is why you need an attorney that is skilled and experienced in criminal law and divorce law. Mario, Gunde, Peters, Rhoden & Kelley is Brevard County’s largest and most experienced criminal and family law firm. Our attorneys have experience in every type of criminal case from death penalty and murder cases to simple assault. We also have decades of experience in complex divorce litigation. Call our office to put our Cocoa and Melbourne Domestic Violence Injunction attorneys to work for you 321-631-0506 or use the Contact form at the top of this page.
What If An Injunction Is Granted?
If a Court grants a Final Judgment on Injunction for Protection, it can have serious consequences for the Respondent. First, it is a judgment by the Court that the Respondent used violence or the threat of violence against the Petitioner. By this very fact the Respondent’s reputation is damaged. Many employers, from the NFL to tech companies have adopted a zero-tolerance policy for domestic violence. A Respondent can be thrown out of their home, lose their job, lose the respect of the community, lose their children, and be ordered to pay child support and alimony.
A Respondent also loses their Second Amendment right to have firearms. Florida Statute 790.233 makes it a first-degree misdemeanor for the Respondent to have in their care, custody, possession, or control any firearm or ammunition. This Court does not have authority to prohibit the Respondent from owning firearms, but they are required to prohibit the Respondent from having any firearm in their care, custody, or control. An exception applies to law enforcement officers. F.S. 741.31(4)(b)2. provides a certified law enforcement officer may retain firearms and ammunition used to perform their official duties.
Even if a Respondent does not lose their job, they can lose their security clearance and chances for promotion. An Injunction can ruin the career of a person in the military. These factors are particularly important in Brevard County because we have many high tech and military personnel in the county. Under 741.30(6)(a)5. the Respondent can be ordered to participate in treatment, intervention, or counseling services. You are now designated a person who did something wrong who now needs treatment for your problem. The Respondent also has to pay for the program.
In some way having a Final Judgment on Injunction for Protection entered is worse than being charged with a crime. If you are charged with a minor crime, and the charges are dropped, you can get the court record sealed or expunged. Injunction proceedings are civil in nature and there is no procedure that allows the record of the Injunction proceedings to be sealed or expunged. Even if the Petition for Domestic Violence Injunction is dismissed by the Court or the Petitioner, the court record remains. In most counties in Florida (including Brevard County) court records are online and easily accessible to the general public.
As provided in F.S 741.30(6)(c) an Injunction shall remain in effect until modified or dissolved. The Court can also specify in the Injunction when the Injunction expires. Typically, a Court will provide an Injunction will expire in six months to a year. At any time either the Petitioner or the Respondent can file a motion with the Court asking the Injunction be dissolved or modified. F.S. 741.30(10) also provides that either party may move to modify or dissolve an Injunction at any time. It is not known if the Florida Legislature really wanted to reiterate that Injunctions may be modified at any time or if it was just sloppy work.
If a Final Judgment on Injunction for Protection is issued by the Court, only the Respondent is covered by the court order. Only the Respondent is ordered to do or not do something. Only the Respondent is ordered to stay away from the Petitioner. Only the Respondent is ordered to not commit future acts of violence against the Petitioner. The Petitioner is not ordered to do or not do anything. Only the Respondent can violate the Injunction. The Petitioner cannot violate the Injunction because they are not covered by the court order.
It is not unusual for the Petitioner to contact the Respondent after an Injunction is issued. This contact does not subject the Petitioner to any court sanction. The Respondent can use contact by the Petitioner as a basis to ask the court to modify or dismiss the Injunction. The Petitioner seeking contact with the Respondent will cause the court to doubt the Petitioner has a fear of the Respondent.
Attorney Fees in Domestic Violence Injunctions
In dissolution of marriage cases, either party may ask for an award of attorney fees. Domestic Violence Injunctions are frequently intertwined with dissolution of marriage cases. Nevertheless, as provided in F.S. 741.30(1)(g) neither party may be awarded attorney fees in a Domestic Violence Injunction case.
There is an exception to the above if a Respondent violates the Domestic Violence Injunction. Under 741.31(6) a person who suffers injury and/or loss as a result of a violation of an Injunction may be awarded damages including costs and attorney fees.
What Happens If The Respondent Violates The Final Judgment On The Injunction For Protection?
A Domestic Violence Injunction proceeding is civil in nature. Once an Injunction is issued, it is a crime to violate the Injunction for Protection. Under F.S. 741.31 the crime is a misdemeanor of the first degree and the Respondent, now a Defendant, is subject to a fine of $1,000.00 and imprisonment in the Brevard County Detention Center for up to 365 days. The third time a Respondent violates an Injunction, they commit a third-degree felony punishable by up to five (5) years in prison. The Court can also enforce the Domestic Violence Injunction through civil or criminal contempt proceedings.
If a person is arrested for violation of a Domestic Violence Injunction, they are not entitled to post bail before they see a Judge. Normally, for most criminal offenses, a Defendant can have bail set by the arresting officer in accord with the Brevard County Bail Schedule. The Defendant can then post the bail and be released within a few hours. A Defendant arrested for a violation of a Domestic Violence Injunction must wait for a Judge to set bail at a First Appearance. First Appearance proceedings take place once a day at the Brevard County Detention Center. If the Defendant misses the cut off for the day, the Defendant could be stuck in jail for over 24 hours.
Appeals In Domestic Violence Injunction Cases
If a Court issues a Final Judgment on Injunction for Protection Against Domestic Violence, the Respondent can appeal within 30 days. 30 days, not 31 days, or any day after 30 days. The proceedings are recorded by the Court so there is a record that can be used to present to the appellate court.
It is very tough to win an appeal in a Domestic Violence Injunction case. The Court acts as the finder of fact and rules on the law. The Court has tremendous discretion to believe or not believe a witness and control the admission of evidence. However, an abuse of this discretion can be a ground for appeal. You can also appeal the Court’s failure to properly apply the law. Even if the Court makes an error of law, the appellate court will look to see if the error was harmless and the Injunction is proper notwithstanding the error.
What Is The Difference Between A Restraining Order And A Domestic Violence Injunction?
In a word, none. An Injunction is just the legal word used for what many people call a Restraining Order. In Florida we use Injunction, in other states, the same document is called a Restraining Order.
What Happens if the Petitioner Does Not Come To The Domestic Violence Injunction Hearing?
If the Petitioner is not in the courtroom when the Court calls up the case, the Court Deputy will “sound the hall” for the Petitioner. If the Petitioner is still not present, the Court has no choice but to dismiss the Petition for Domestic Violence Injunction. If the Respondent is present, they will be given a copy of the Order of Dismissal. If a Temporary Ex Parte Domestic Violence Injunction was initially granted by the Court, all restraints on the Respondent’s conduct are lifted.
What Happens If The Respondent Does Not Come To The Domestic Violence Injunction Hearing?
If the Respondent is not present at the Domestic Violence Injunction hearing, the Court will check the court file to see if there is proof in the file that the Respondent was properly served with the Petition for Domestic Violence and Notice of Hearing. If there is no proof the Respondent was properly served, the Court will ask the Petitioner if they want to continue the case so proper service can be made or if they want the case dismissed. If the Respondent was properly served, the Court will most likely grant the Petition and enter a Final Judgment on Injunction for Protection against the Respondent. If the Court believes it is appropriate the Court will impose the terms of the Injunction as requested by the Petitioner.
Working The Domestic Violence Injunction Case and How A Lawyer Can Help
Our experienced and aggressive Domestic Violence Injunction Attorneys have a wide range of options to work your case and create a strong defense. They include:
- Pick the Petition for Injunction for Protection Against Domestic Violence apart word by word, comma by comma. Often a Petitioner makes mistakes in their Petition that leaves their story or the Petition itself open to attack. On rare occasions, a Petition is so defective a Judge will have to dismiss the Petition before the hearing even starts.
- A Motion to Continue Hearing can be filed in cases where more time is needed to prepare for the hearing. This should only be done after careful consideration as the Court will leave the Temporary Injunction in place until the hearing.
- The Petitioner and other witness can be forced to give testimony in a pre-hearing deposition. False accusations often fall apart during the intense questioning of a deposition.
- Subpoenas can be served on witnesses forcing them to come to the hearing. Police officers, neighbors, and family members can be valuable witnesses. Important documents like medical records, or police reports can also be acquired by subpoena.
- Cross examination of witnesses has been called the greatest tool ever invented for discovery of the truth. A strong cross examination can destroy false or inconsistent allegations.
- Help you tell a coherent, consistent story that is convincing to the Judge. It is important to make a good courtroom presentation. A few simple things can make a big difference such as, dress nice, rehearse your testimony, look at the judge while testifying, and be courteous in Court.
These are just a few of the things an aggressive and skillful attorney can do to help fight your Domestic Violence Injunction case.
No matter what you call it, an Injunction, Restraining Order, or Order of Protection, the Court Order has serious consequences. You need to hire an experienced attorney who can help you. Mario, Gunde, Peters, Rhoden & Kelley has five attorneys who have experience with family law and Domestic Violence Injunctions. Call today for a free initial consultation with one of our Domestic Violence Injunction attorneys 321-631-0506 or use the Contact form at the top of this page. Our offices serve all of Brevard County including Titusville, Mims, Port St. John, PAFB, Cocoa, Melbourne, Satellite Beach, Indialantic, Palm Bay and all other areas.