Domestic Violence Injunctions in Florida
There are actually five (5) different types of orders of protection against violence that an individual can obtain in the State of Florida. This article will explain the different types of proceedings for protection, and the various types of criteria that are unique to each type of order for protection.
The primary petition that is encountered most frequently is a petition for domestic violence, which is filed pursuant to Florida Statute 741.30(1)(a).
If you are seeking to file a petition for domestic violence under Florida Statute 741.30(1)(a), you must either be a victim of domestic violence, or be in imminent fear of becoming a victim of domestic violence. The standard for what is considered imminent fear, is determined on an objective basis, rather than on a subjective basis. The standard is what a reasonable person would consider to be imminent fear of becoming a victim of domestic violence, rather than your own individual, subjective feelings.
You can file a petition for domestic violence if you are in imminent fear of becoming a victim of domestic violence, or if you have been a victim of domestic violence.
What exactly is domestic violence? Domestic violence includes any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking including cyber stalking, aggravated stalking, kidnapping, false imprisonment, or any other criminal offense resulting in physical injury or death of one family or household member by another family or household member.
The court has to decide whether a petitioner who is seeking protection under the domestic violence statute has reasonable cause to believe he or she is in imminent danger of becoming a victim of domestic violence. The court is required, and must consider all relevant factors alleged in the petition, including but not limited to, a list of statutory factors in making this determination.
The statutory factors which the court must consider, are as follows:
- The history between the petitioner and the respondent, including threats, harassment, stalking, and physical abuse.
- Whether the respondent has attempted to harm the petitioner or family members or individuals closely associated with the petitioner.
- Whether the respondent has threatened to conceal, kidnap, or harm the petitioner’s child or children.
- Whether the respondent has intentionally injured or killed a family pet.
- Whether the respondent has used, or has threatened to use, against the petitioner any weapons such as guns or knives.
- Whether the respondent has physically restrained the petitioner from leaving the home or calling law enforcement.
- Whether the respondent has a criminal history involving violence or the threat of violence.
- The existence of a verifiable order of protection issued previously or from another jurisdiction.
- Whether the respondent has destroyed personal property, including but not limited to, telephones or other communications equipment, clothing, or other items belonging to the petitioner.
- 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.
If you wish to seek protection under the domestic violence statute, you, as well as the respondent, must be family or household members. A family or household member includes spouses, former spouses, persons related by blood or marriage, persons who are presently living together as if a family or who have lived together in the past as if a family, and persons who are parents of a child together, regardless of whether or not they have been married or lived together.
It is important and worthy to note that the family or household members must be currently residing together or have in the past resided together in the same dwelling to qualify under the statute.
The only exception would be those persons would have a child in common. There is no necessity that they had lived together at any particular point in time in order to qualify under the statute.
When you initially file your petition for protection under the domestic violence statute, you will not need to appear in front of a judge. A judge will review your sworn allegations in your petition, and the judge will make a determination as to whether or not an immediate and present danger of domestic violence exists.
After reviewing your petition, the court can do one of several things. A judge can deny a petition without a return hearing if he or she finds that there is no basis for the issuance of an ex parte temporary injunction. A judge is required to make specific findings in his order as to why the ex parte petition is being denied.
If there is no appearance in your petition of an immediate and present danger, the court has a right to deny the petition but can still set a hearing on your petition with notice to the respondent. This hearing must be conducted within 15 days from the date of the order.
If, after conducting an evidentiary hearing with both parties present, and if an injunction is granted, the court can impose a multitude of remedies between the parties, based on the circumstances existing between them.
For example, the court can award the petitioner temporary, exclusive use and occupancy of the residence that the parties shared, regardless of who holds title to the property. The court can also specify distances that the respondent must stay away from the petitioner as to various locations, including the petitioner’s home, place of employment, school, parent’s home, as well as the automobile used by the petitioner.
The court also has the authority to establish temporry support, as well as a parenting plan if there are minor children involved between the parties. The respondent can also be ordered to enroll and complete a certified batterer’s intervention program.
Although attendance at a batterer’s intervention program is discretionary, there are three (3) circumstances when the court must order the respondent to attend a batterer’s intervention program. They are as follows:
- The respondent willfully violated an ex parte injunction that may have been issued.
- The respondent had been convicted of, had adjudication withheld on, or pled nolo contendere to a crime involving violence or a threat of violence.
- At any time in the past an injunction had been entered against the respondent after a hearing with notice.
If you do not qualify for protection under the domestic violence statute, you might qualify under the repeat violence, dating violence, sexual violence, or stalking statute for protection. Each one of these statutes has different criteria you must meet.
In order to qualify to file a petition for repeat violence, you have to plead and prove that you’ve been a victim of at least two (2) incidents of violence or stalking, one of which must have occurred within the six (6) months preceding the filing of your petition.
As you can readily see, the main distinction between the domestic violence statute and the repeat violence statute, is that there is no necessity for actual violence to occur in a domestic violence situation, like there is with repeat violence. In a domestic violence situation, it is the imminent fear of becoming a victim of domestic violence, which may be sufficient for you to obtain an order of protection.
The entitlement to an award of attorney’s fees does not exist under any of the statutory proceedings for orders of protection.
Dating violence is similar to domestic violence in some respects. There does not need to be a pre-existing act of violence upon the petitioner, which is required under the repeat violence statute.
Dating violence consists of violence between individuals who have or have had a continuing and significant relationship of a romantic or intimate nature. In order to qualify to file a petition under the dating statute, the court will look to see if a relationship existed within the past six (6) months; whether the relationship was characterized by the expectation of affection or sexual involvement between the parties; and the frequency and type of interaction that the persons were involved over time and on a continuing basis during the course of the relationship.
Dating violence consists of more than that of a casual acquaintance in a business of social context.
Sexual violence involves protection can be obtained for one incident of sexual battery. A person who is a victim of a sexual battery or the parent or guardian of a minor child who lives at home and is a victim of an act of sexual violence, has standing to file a petition for protection under this particular statute. It is important to note that as a prerequisite to filing a petition for protection against sexual violence, the petitioner must have reported the incident to law enforcement and also be cooperating in any criminal proceeding against the respondent. If the respondent is in prison for the act of violence, you can still qualify to file a petition for protection if the respondent’s sentence is due to expire within the next 90 days.
Stalking and cyber stalking requires a showing of immediate and present danger of stalking, very similar to the domestic violence statute. A hearing must be set within 15 days if the court finds that the only basis for denial of an ex parte temporary injunction is the absence of the immediate and present danger of stalking.
Cyber stalking does not require that you prove violence or verbal threats. In order to obtain relief however, the court will employ an objective standard and require a showing that a reasonable person must suffer substantial emotional distress in order to obtain injunctive relief.
The law regarding the various types of protection available to Floridians can be complicated and overwhelming. Whenever you find yourself in a situation, either petitioning for protection, or defending against the imposition of an injunction against you, you should seek the advice of competent and professional legal counsel. Alan R Burton, Esq. has been practicing law in the State of Florida since 1979. He has over 36 years of experience, and experience counts when you are dealing with important issues such as these.
Alan R. Burton maintains his primary office in Boca Raton, Palm Beach County, Florida. He can also meet with you in his Fort Lauderdale, Broward County office. You can call Alan R. Burton for a free consultation at 954-295-9222. These types of proceedings require prompt attention, so call Mr. Burton today for his assistance.