What is domestic violence under Florida law?
“Domestic violence” is defined by §741.28 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 of one family household member by another.
Do I qualify to file for protection under Florida’s domestic violence statute?
Standing to file (explained earlier) is conferred upon family or household members, which are defined as: spouses; former spouses; persons related by blood or marriage (including minors); any person who is or was residing within a single dwelling with petitioner as if a family; or a person with whom the petitioner has a child in common (regardless of marriage or cohabitation).
Where can I file a petition against domestic violence?
The petition may be filed in the circuit where the petitioner is currently or temporarily residing, where the respondent resides, or where the domestic violence occurred. This allows a victim of violence, who has fled their home county, to obtain protection in their county of temporary residence without having to return to the site of the potential danger.
What must be alleged in my petition?
The court may issue an ex parte temporary injunction if the required relationship exists and the court finds that there is an immediate and present danger of domestic violence. The petitioner must plead and prove he or she has been a victim of domestic violence or that there is reasonable cause to believe he or she is in imminent danger of becoming a victim. Note that the statute is phrased in the disjunctive and only one of the two criteria need be satisfied: petitioner has been a victim, or has reasonable fear of imminent violence.
An order for protection against a domestic violence is easier to obtain than most people think. The weakest of allegations will suffice provided they establish the required elements. Magistrate judges charged with reviewing petitions our trained to exercise discretion on the side of caution and grant them liberally. A finding that some form of immediate and present danger exists is the primary issue during this first phase of judicial review.
How do the courts determine weather an immediate and present danger exists?
When determining whether an immediate and present danger exists, the court considers the totality of the circumstances. In 2002, the legislature detailed 10 specific factors for the court to take into account. These are indicators of elevated danger and include acts or threats of violence; attempts to harm petitioner, family members or close associates; restraining petitioner from leaving the home or contacting police; prior orders of protection; injuring or killing a family pet; threats to use a gun or knife; previous criminal history; threats to kidnap or harm petitioner’s children; and destruction of personal property.
What kinds of restrictions may the court impose upon granting a temporary order of protection?
If the court enters an ex parte temporary injunction, the court may award the following requested relief in addition to the standard injunctions against acts of violence and “the no contact within 500 feet” provisions: exclusive use of a shared dwelling (regardless of title); exclusion of the respondent from petitioner’s residence, place of employment, school, or other designated places frequented by petitioner, family, or household members; temporary custody of minor children; and temporary surrender of firearms and ammunition.
If the court orders one party out of the home will I be required to turn over any personal items to them? I am doing a detailed I am working on a detailed
If the court awards exclusive use of a shared home, provisions will be made for the respondent to retrieve items of personal health and hygiene, tools of the trade, along with other property that the parties may agree on. The respondent will be allowed to return to the premises to retrieve these items at a designated time, in the presence of law enforcement, who will normally stand by for a short period of time (usually 30 minutes or less). In a Ch. 741 proceeding, the court has no authority to make any equitable distribution of property.
If I file for protection against domestic violence will I also be restricted from going near the respondent?
In cases involving respondents that have not filed a counter petition for protection, the courts may not impose reverse or mutual injunctions. No restrictions will be placed on petitioner seeking relief under Florida law even where an injunction is granted. Remember the word “petitioner” refers to the person who filed for protection. The respondent is the party defending against claims and has potential exposure to any restriction on liberty. This is true even where a respondent has provided compelling evidence that the petitioner in an action has perpetrated violent acts against them. Florida law makes it clear that the domestic violence injunction statute specifically prohibits the entry of any form of “mutual” injunctions. Separate injunctions may be issued under individual and distinct case numbers, in circumstances where each party files for an order of protection, and pleads and proves sufficient facts to warrant the entry of an order.
What happens if the respondent violates the injunction against domestic violence?
Violations of the injunction by the respondent, such as refusing to vacate a shared dwelling; returning to the shared dwelling; coming within 500 feet of petitioner’s home, place of employment, or other designated place; telephoning, contacting, or otherwise communicating with the petitioner, directly or indirectly; committing any act of domestic violence against the petitioner; and/or having any firearms in respondent’s possession are first degree criminal misdemeanors.
Other violations, such as failure to pay ordered support; failing to attend the court ordered counseling; or violation of visitation orders may result in contempt of court charges. Certain violations of the injunction, such as intentionally crossing a state line to violate an injunction; causing an intimate partner to cross state lines by force or fraud and causing bodily injury to that person in violation of an injunction; and interstate stalking are also crimes under the Federal Violence Against Women Act (VAWA).
Even if the petitioner, or a third party, invites the respondent to come to the residence, or otherwise into contact with the petitioner, it is a violation of the injunction. Remember, petitioners who initiate contact with the respondent cannot be charged with violating the injunction. If petitioner makes contact, the respondent should file a motion to dissolve the injunction or dismiss the case, although it is not always grounds for dismissal.
What kinds of restrictions may the court impose upon granting a PERMANENT order of protection?
The injunctive relief which may be awarded in the permanent injunction against domestic violence include the same provisions for protection against violence and include injunctions against contact and acts of violence, award of temporary visitation; child support; and spousal support; ordering the respondent to attend a certified batterers’ intervention program, parenting classes, substance abuse or other counseling; and a mandatory prohibition against possession of firearms and ammunition. Both federal and Florida law make it a crime for a respondent to possess any firearms or ammunition while subject to a qualifying order of protection against domestic violence. Surrender of all personal firearms is mandatory, although law enforcement officers, as defined by F.S. §943.10(14) may keep their service weapons while on official duty unless otherwise prohibited by the employing law enforcement agency.
Will I have to pay attorneys fees to the respondent if I DON’T WIN THE HEARING?
There is no statutory authority for an award of attorneys’ fees in a Ch. 741 injunction proceeding. Neither trial nor appellate fees may be awarded under any theory, including F.S. §57.105.
Are protective orders enforceable outside of the state of Florida?
Florida injunctions are enforceable in all counties of the state as well as nationwide. Similarly, a qualifying final order of protection against domestic violence issued by a court of a foreign state, must be accorded full faith and credit by the courts of Florida and enforced by law enforcement as if they were Florida court orders.
What if I need help filing for a petition for protection against domestic violence?
If you have questions or are having trouble preparing your petition for protection against domestic violence, you are not alone. Call criminal defense attorney William R. Moore directly if you need help. He will discuss your case free of charge.