If you are the victim or served with notice that you are the respondent in a petition for domestic or repeat violence, it is important to immediately contact an experienced criminal defense or family law attorney familiar with domestic violence or repeat violence cases.
As a criminal defense and family law attorney in Fort Lauderdale, I oftentimes receive inquiries asking how an individual would seek to obtain an injunction for protection against domestic or repeat violence. I created this “cheat sheet” for my clients to understand the requirements necessary to obtain such injunctions.
To obtain an injunction, an individual (with or without the help of a criminal defense or family law attorney) must first complete a detailed petition citing the reasons why they are seeking an injunction. The petition can be found on http://www.flcourts.org/. The individual requesting the injunction is the PETITIONER. The person who is alleged to commit the act of violence is the RESPONDENT. The petitioner can also receive the petition at their county courthouse. Provided the petitioner is not in immediate danger, I would encourage the petitioner to gather their thoughts and create a detailed summary of any acts of violence committed by the respondent during their relationship prior to completing the petition. Please note, the petitioner can always amend their petition at a later time. Courthouse personnel are always available to help the petitioner author their petition. Most courthouses will provide interpreters, if necessary.
The duty Judge (“on-call” Judge) will review the petition and determine whether he/she has a legally sufficient basis (“strong and clear evidence”) to enter an ex parte Order issuing a temporary injunction against the respondent. The duty Judge will base their decision on the criteria listed below. Provided the Judge issues a temporary injunction, the local sheriff’s office will seek to serve the respondent with such notice. Upon being served with the temporary injunction, the respondent will not be permitted to have direct or indirect contact with the petitioner unless the Order is amended (or deleted) by the Court. Indirect contact includes contact by third parties and email and text message correspondence. The Court Order provides the petitioner “protection” against the respondent until the next Court hearing, usually within 14 days after the Order is entered. At that time, the respondent can choose to defend themselves against the accusations in the petition and request the Court to delete the Order. Both sides can seek to retain a criminal defense or family law attorney to represent their interests at such hearing(s).
At the Court hearing, a Judge will determine whether to amend or delete the temporary Order after hearing testimony from the petitioner, respondent, and any relevant witnesses. The Court can choose to amend the Order from a temporary injunction to a permanent injunction depending on the severity of the facts.
In Florida, A petitioner is entitled to obtain an Injunction for Protection Against Violence if they fit into one of the following four categories:
Florida Statute 741.30 – Domestic Violence
“Domestic violence” means 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 of one family or household member by another family or household member.
Family or household member includes: a spouse; an ex-spouse; a relative by blood or marriage who currently lives with the petitioner or who lived with the petitioner in the past; anyone who lives with the petitioner in the same dwelling as a family unit; or anyone with whom the petitioner has a child with, regardless of whether the petitioner lives with the respondent.
The petitioner will have to show by competent substantial evidence that he/she was a victim of domestic violence OR has reason to believe he/she is in imminent danger or becoming a victim of domestic violence.
Florida Statute 784.046 – Repeat Violence
The petitioner will have to show by competent substantial evidence that he/she was a victim of: ONE (1) incident of stalking or TWO (2) incidents of an assault, battery, or sexual battery, one of which must have occurred within the last six months. Anyone can be eligible to obtain an injunction against repeat violence
Florida Statute 784.046 – Dating Violence
“Dating violence” means 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.
Dating violence means violence between people who have, or have had, a continuing and significant romantic or intimate relationship. The relationship must have existed in the past six months, have been characterized by the expectation of affection or sexual involvement, and the frequency (amount) and type of interaction must have included that the persons have been involved over time and on a continuous basis during the course of the relationship. It is not considered “dating violence” in cases where the contact between the two people has been “casual” or “ordinary.”
The petitioner will have to show by competent substantial evidence that he/she was victim of dating violence AND has reason to believe he/she is imminent danger of becoming a victim of another act of dating violence OR the petition has reason to believe that he/she is imminent danger of becoming a victim of dating violence.
Florida Statute 784.046 – Sexual Violence
Sexual violence means any ONE incident of sexual battery; a lewd and lascivious act, committed upon or in the presence of a person younger than 16 years of age; luring or enticing a child; sexual performance by a child; OR any other forcible felony wherein a sexual act is committed or attempted, regardless of whether criminal charges based on the incident were filed, reduced, or dismissed by the State Attorney.
The petitioner will have to show that he/she is a person who is the victim of sexual violence or the parent and local guardian of a minor child who is living at home who is the victim of sexual violence AND has reported the incident to law enforcement AND is cooperating in any criminal proceeding against the respondent. Alternatively, the petitioner can show that the respondent who committed the sexual violence against them or their minor child was sentenced to term of imprisonment in State prison for the sexual violence AND the respondent’s term of imprisonment has expired OR is due to expire within 90 days.
If you are the victim (petitioner) or served with notice that you are accused of domestic violence or repeat violence (respondent), you should immediate contact an experienced criminal law or family law attorney to review your case.