Florida provides for several types of protective orders against various forms of domestic, repeat, sexual and stalking violence. Stalking violence includes cyberstalking. These orders are commonly referred to as injunctions or restraining orders. Today we are going to talk about how to properly file for an injunction; what needs to be alleged and what statue to file under.
In this podcast, Criminal Defense Lawyer William R. Moore will focus on how to obtain protection against domestic violence followed by allegations and standing requirements for petitions seeking protection under repeat, sexual and stalking violence statutes.
A full explanation as to how to file for an injunction prohibiting a respondent from having contact with you under this section is provided below that corresponds with the audio podcast narrated by criminal defense attorney William R. Moore. The form required to file under the domestic violence statute may be obtained below.
If you are unsure as to what type of restraining order you should file for visit the page Types of Restraining Orders.
Preliminary information about injunctions against domestic, repeat, sexual or stalking violence
Judges who hear domestic violence type injunction hearings generally have significant prior experience in criminal law.
Although the various types of injunctions under Florida Law are civil proceedings, the judges most qualified and most often chosen to hear these cases are former criminal defense attorneys, prosecuting lawyers or criminal court judges. This is because the action, although civil, is considered by many to be quasi criminal in that they involve restrictions on liberty. Furthermore, the violation of either a temporary or permanent injunction can give rise to incarceration sentences. Injunction hearings, from a procedural standpoint are dictated by the family law rules while evidentiary issues are governed by the Florida evidence code. In short, this means that it is easier to get evidence admitted in an injunction hearing than in let’s say a criminal proceeding.
Where an action for injunction against domestic, repeat, sexual or stalking violence is sought by individuals involved in an open divorce or child custody proceeding, the case will be heard in front of the presiding Family Court judge rather than the County’s assigned restraining order judge.
It is criminal defense lawyers and not family attorneys who are primarily chosen to both prosecute and defend claims
When filing these cases on your own behalf and without the assistance of an attorney you will do so at the main criminal courthouse in the jurisdiction for which you are filing. For example, if you were filing in Broward County you would file on the second floor of the Broward County Central Courthouse which is located at 201 SE. 6th St., Fort Lauderdale, FL 33301.
Cost of filing petition for injunction against domestic, repeat, sexual or stalking violence
Anyone seeking protection from the Florida courts may do so free of charge. As all fees have been eliminated as of July 1, 2003. Services such as legal aid may provide attorneys and or paralegals to assist those seeking protection. Additionally, a representative from the county's batterers intervention program may be present to evaluate housing needs on an individual basis.
Temporary orders of protection against domestic, repeat, sexual or stalking violence
Once a petition has been filed, it is presented to a magistrate judge to consider whether an ex parte temporary injunction, valid for up to 15 days, should be granted. This decision is based on the allegations sworn to by the petitioner alone. There is no need to provide any corroborating evidence in the form of arrest reports, photographs or witness statements a more thorough presentation of evidence will be reserved for the final hearing on the issue.
Final hearing on A petition against domestic, repeat, sexual or stalking violence
If a temporary injunction is issued, a full evidentiary hearing must be scheduled within the 15-day period in which the temporary protective order is in effect. Note that issues pertaining to service of process of the respondent may result in an extension of this 15 day time. Temporary injunction orders against domestic, repeat, sexual or stalking violence are commonly extended by the presiding judge. Hearing dates are also routinely continued based on the availability of witnesses.
If a temporary injunction is denied because the court finds no risk of immediate and present danger, a final hearing will still be scheduled. Most temporary injunctions are denied based on the petitioner’s filing an action under the wrong statute. For example, a petition for protection against domestic violence form being used where the allegations amount to stalking violence. It is important to know which of the various laws providing protection in Florida is most applicable. Many individuals seeking protection have cases which allege facts giving rise to injunctions being granted under more than one of the four areas. In this case, a petition for each type of injunction should be filed.
Final Hearing on PETITION against domestic, repeat, sexual or stalking violence
At the final hearing, the petitioner must prove the case by a preponderance of the evidence, which is low standard of proof under Florida law. There is no requirement that the petitioner provide any other evidence then their own statement. In fact, many permanent protective orders are granted based on the statements of individuals claiming to be victimized or otherwise in fear. Criminal defense attorneys heavily advise presenting all available evidence at a final hearing against domestic, domestic, repeat, sexual or stalking violence.
FINAL ORDER on A PETITION against domestic, repeat, sexual or stalking violence
“Final judgments” for protection against violence, commonly known as “permanent injunctions,” remain in effect until modified or dissolved by the court. Most final orders for protection are for an indefinite period time. This means they will restrict the respondent forever unless a future court hearing is set by one of the parties seeking to lift the imposed restrictions.
Where a final order of protection is for a specified period of time the restriction on the respondent’s liberty will only remain in effect until the final date of the order. The injunction will automatically ceased to be in effect on the final date.
Injunctions for protection may be extended beyond their expiration date, provided the request to extend is filed prior to actual expiration. In determining whether the injunction should be extended, the occurrence of new violence is not required. The court may consider the circumstances leading to the imposition of the original injunction, as well as subsequent events that may cause the petitioner to have continuing reasonable fear that violence is likely to recur in the future.
STANDING TO FILE A PETITION against domestic, repeat, sexual or stalking violence
Standing is a word used by the courts to describe and individuals right to file under any particular Florida statute. Consequently, when determining which cause of action is appropriate, the petitioner must first consider whether they have “standing” to file. For example, standing to file an action under the domestic violence statue is based solely upon the relationship between the parties. For example, a petitioner who had never before met the respondent prior to the date giving rise to the action would not be able to file under the dating violence statute. This is because under Florida law, and action against dating violence requires that the parties “had a continuing and significant relationship of a romantic or intimate nature.”
In this lecture, I am going to first focus on injunctions against domestic violence followed up by the different allegations and standing requirements of filing under repeat, sexual, stalking injunctions and cyber stalking injunctions. Since all of these injunctions share the same core principles it is advisable that you listen to the first section outlining the domestic violence statutes in order to fully understand ancillary Florida statutes that cover repeat, sexual, stalking violence and cyberstalking injunctions.
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 for protection against domestic violence in my case?
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; allegations that the respondent has attempted to restrain the 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?
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.
Petitioner and respondent must be family or household members. § 741.30(1)(e).
STANDING TO FILE
- “Family or household member” means 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. § 741.28(3).
- With the exception of persons who have a child in common, the family or household members must be currently residing together or have in the past resided together in the same single dwelling unit. § 741.28(3).
- A minor child can file by and through a parent.
There is no minimum residency requirement.
A petition may be filed in the circuit where the petitioner currently or temporarily resides, where the respondent resides, or where the domestic violence occurred. § 741.30(1)(j).
Petitioner must be a victim of domestic violence or in imminent danger of becoming a victim. § 741.30(1)(a).
- Domestic violence includes: assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any other criminal offense resulting in physical injury or death to one family or household member by another family or household member. § 741.28(2).
- In determining whether Petitioner has reasonable cause to believe he or she is in imminent danger of becoming a victim of domestic violence, the court must consider all relevant factors alleged in the petition for injunction for protection against domestic violence, including, but not limited to:
- 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 used, or has threatened to use, against the petitioner any weapons such as guns or knives.
- Whether the respondent has intentionally injured or killed a family pet.
- 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 communication 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.
Repeat violence means that two incidents of violence have been committed against you or a member of your immediate family by another person, one of which must have been within 6 months of filing this petition. Repeat violence includes assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, or false imprisonment, or any criminal offense resulting in physical injury or death.
REPEAT VIOLENCE CHECKLIST
- Two incidents of violence or stalking committed by the respondent, which are directed against the petitioner or the petitioner’s immediate family member.
- One of the two incidents of violence or stalking must have been within 6 months of the filing of the petition. § 784.046(1)(b).
- Any person who is the victim of repeat violence or the parent or legal guardian of any minor who is living at home and who seeks an injunction for protection against repeat violence on behalf of the minor child has standing in the circuit court to file a sworn petition for an injunction for protection against repeat violence. § 784.046(2)(a).
Stalking means the repeated following, harassment, or cyberstalking of one person by another. Cyberstalk means to engage 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 emotional distress to that person and serving no legitimate purpose.
STALKING VIOLENCE CHECKLIST
- A person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person commits the offense of stalking, a misdemeanor of the first degree. §784.048(2), Florida Statutes.
- A person who willfully, maliciously, and repeatedly follows, harasses or cyberstalks another person, and makes a credible threat to that person commits the offense of aggravated stalking, a felony of the third degree. §784.048(3), Florida Statutes.
- “Harass” means to engage in a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose.
- “Course of conduct” means a pattern of conduct composed of a series of acts over a period of time, however short, which evidences a continuity of purpose.
- “Credible threat” means a verbal or nonverbal threat, or a combination of the two, including threats delivered by electronic communication or implied by a pattern of conduct, which places the person who is the target of the threat in reasonable fear for his or her safety or the safety of his or her family members or individuals closely associated with the person, and which is made with the apparent ability to carry out the threat to cause such harm. It is not necessary to prove that the person making the threat has the intent to actually carry out the threat. The present incarceration of the person making the threat is not a bar to prosecution.
- “Cyberstalk” means to engage 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 emotional distress to that person and serving no legitimate purpose. §784.048(1)(a-d), Florida Statutes.
- A person who is the victim of stalking or the parent or legal guardian of a minor child who is living at home who seeks an injunction for protection against stalking on behalf of the minor child has standing in the circuit court to file a sworn petition for an injunction for protection against stalking. §784.0485(1)(a), Florida Statutes.
- The injunction for protection may be sought regardless of whether any other cause of action is currently pending between the parties, and may be sought by any affected person. §784.0485(1)(b-c), Florida Statutes.
- The cause of action for an injunction does not require either party to be represented by an attorney. §784.0485(1)(d), Florida Statutes.
- The court may not issue mutual orders of protection; however, the court is not precluded from issuing separate injunctions for protection against stalking. §784.0485(1)(e), Florida Statutes.
- A petition for an injunction for protection against stalking may be filed in the circuit where the petitioner currently or temporarily resides, where the respondent resides, or where the stalking occurred. There is no minimum requirement of residency to petition for an injunction for protection. §784.0485(1)(f), Florida Statutes.
- Notwithstanding any other law, the clerk of court may not assess a filing fee to file a petition for protection against stalking. §784.0485(2)(a), Florida Statutes.
- The court shall set a hearing to be held at the earliest possible time. The respondent shall be personally served with a copy of the petition, notice of hearing, and temporary injunction, if any, before the hearing. §784.0485(4), Florida Statutes.
- If an injunction is issued and the petitioner requests the assistance of a law enforcement agency, the court may order that an officer from the appropriate law enforcement agency accompany the petitioner to assist in the execution or service of the injunction. A law enforcement officer shall accept a copy of an injunction for protection against stalking, certified by the clerk of the court, from the petitioner and immediately serve it upon a respondent who has been located but not yet served. §784.048(8)(a)(2), Florida Statutes.
Any one incident of:
- Sexual battery, as defined in chapter 794;
- A lewd or lascivious act, as defined in chapter 800, committed upon or in
the presence of a person younger than 16 years of age;
- Luring or enticing a child, as described in chapter 787;
- Sexual performance by a child, as described in chapter 827; or
- Any other forcible felony wherein a sexual act is committed or attempted,
Any one of the incidents listed above meet the definition, regardless of whether criminal charges based on the incident were filed, reduced, or dismissed by the state attorney. § 784.046(1)(c).
Any person who is the victim of sexual violence or the parent or legal guardian of any minor who is living at home and who seeks an injunction for protection against sexual violence on behalf of the minor child has standing in the circuit court to file a sworn petition for an injunction for protection against sexual violence if:
- The petitioner reported the sexual violence to law enforcement and is cooperating in any criminal proceeding against the respondent, regardless of whether criminal charges based on the sexual violence have been filed, reduced, or dismissed by the state attorney; or
- The respondent who committed the sexual violence against the victim or minor child was sentenced to a 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 following the date the petition is filed.
What if I have questions about how to file for an injunction?
If you are having trouble filing a petition for protection against domestic violence, you are not alone. You may contact attorney William R. Moore at any time with questions about your case. There is never a fee to talk to us.