There are three different types of injunctions (commonly referred to as “restraining orders”) available to individuals in Florida: Domestic Violence Injunctions, Dating Violence Injunctions, and Repeat Violence Injunctions. There are a number of different basis for which the court can grant these injunctions, all of which are enumerated in their respective statutes.
Domestic Violence Injunctions
The statute that authorizes the issuance of domestic violence injunctions is Florida Statute §741.30, which allows a person to seek an injunction for protection against domestic violence if he/she is the victim of domestic violence OR has reasonable cause to believe he/she they are in imminent danger of becoming a victim of domestic violence. Domestic violence is defined under the statute as any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death to one family or household member by another family or household member.
Domestic Violence Injunctions are available only to family and household members. This include spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family or have resided together in the past as if a family, as well as people who have a child in common regardless of whether they were ever married if they have resided together in the same dwelling at any point.
After considering certain factors, if it appears to the court that an immediate and present danger of domestic violence exists, it allows the court to grant a temporary injunction based on the allegations of the person who is seeking the injunction alone. This temporary injunction is very powerful; it may award the person who sought the injunction exclusive use of the home as well as setting up a temporary timesharing plan with one parent sometimes receiving 100 percent of the timesharing. The temporary injunction is effective for no more than 15 days and a full hearing shall be set up within that 15 day time limit.
At the hearing, the person seeking a permanent injunction does not have to prove that they were the victim of domestic violence, they only have to show that they have reasonable cause to believe that they are about to become a victim of domestic violence.
For example, in Rey v. Perez-Gurri, the 3rd District Court of Appeals overturned a lower court ruling that denied a permanent injunction to the wife because she had failed to show that an assault had already occurred. In granting the permanent injunction against the husband, the 3rd District Court of Appeals ruled that threatening behavior as well as an ability to carry out the threat suffice as to reasonable cause to believe that a person is about to become the victim of domestic violence.
If the permanent injunction is granted then serious consequences can result. The court may again grant exclusive use and possession of the home to the recipient of the injunction and also set up a contact schedule for the parties’ minor children. The court can enter a temporary order of support as well, which can become permanent. The court may also require the person who the injunction was entered against to participate in, and pay for out of his or her own pocket, treatment, intervention or counseling services. Also, if a final judgment is granted at the hearing, not only can the individual who it is entered against not purchase a firearm, they must surrender any that they currently own. The effects of a permanent injunction being entered go far beyond not being able to be near or talk to the person who filed the petition; it can also affect the person’s relationships with their children and friends, as well as their job. Violation of a Domestic Violence Injunction can result in criminal charges being filed.
Repeat Violence Injunction
Another type of violence injunction available in Florida is offered in situations in which repeat violence has occurred. Florida Statute §784.046(b) defines repeat violence as being two incidents of violence or stalking, one of which must have been within six months of filing the petition. One act, no matter how serious, will simply not form a proper basis for a repeat violence injunction. The Court must also determine that there is an immediate and present danger of repeat violence to issue the injunction.
Unlike the domestic violence injunction, the repeat violence statute does not limit these acts to family or household members only but instead is available to any person in which repeat violence has occurred.
The Repeat Violence Statute defines violence the same way as the domestic violence statute defines it; any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death. Commonly, the basis for repeat violence injunctions is stalking.
Stalking is set out in Florida Statute §784.048(2) as willfully, maliciously, and repeatedly following, harassing, or cyberstalking another person. “Cyberstalking” is further defined as engaging in a course of conduct to communicate or to cause to be communicated, words, images, or language by or through the use of electronic mail or electronic communication, directed at a specific person, causing substantial distress to that person and serving no legitimate purpose. “Harass” is defined as engaging in a course of conduct directed at a specific person that causes substantial emotional distress in such person and serves no legitimate purpose. When someone claims to have suffered substantial emotional distress from being harassed, that emotional distress has to have caused a reasonable person in the victim’s shoes to suffer substantial emotional distress. For example, in Jones v. Jackson, the 2nd District Court of Appeals ruled that threatening phone calls and text messages would not have caused a reasonable person substantial emotional distress and therefore the threats did not amount to harassment under the statute. In my experience, the Court places significant weight on whether the Respondent’s conduct served a legitimate purpose. Frequently, incessant negative social media posts (i.e. Facebook) and machine-gun style texting have served as a (partial) basis to grant a restraining order based on stalking.
The repeat violence statute was designed to address those issues where the petitioner is not in a domestic relationship with the party against whom the petitioner is seeking protection. This includes people who are secondary to a domestic relationship, such as a former spouse to a new spouse, former lover to a new lover, co-worker relationships, school mates and neighbors. Because the repeat violence statute can be applied to a broader group of people than the domestic violence statute, more specific pleadings of the events leading to the request for protection are needed for an injunction to be issued.
Dating Violence Injunction
A third type of protection available in Florida is an injunction for victims of dating violence. Dating violence is violence between individuals who have had a continuing significant relationship of a romantic or intimate nature and can be found under the same statute as repeat violence injunctions, Florida Statute §784.046(d). Dating Violence injunctions are limited to true, ongoing and existing romantic relationships, and are not available to mere acquaintances. Violence is defined the same way as it is in the two previous injunctions; assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death. However, it must have been determined that the people involved had a dating relationship which the court evaluates the existence of based upon certain factors. In order for dating violence to occur, a dating relationship must have existed within the last six months before the petition for the injunction was filed. The Court must also determine that there is an immediate and present danger of dating violence to issue the injunction.
If you are either seeking a Restraining Order (Petitioner) or fighting a Restraining Order (Respondent) it is imperative to immediately contact an experienced Restraining Order lawyer at Lyons, Snyder & Collin to advocate on your behalf.
Special thanks to Courtney Steiger, 3rd Year Nova law student, for contributing to this post.