What are the steps to put an injunction in place?
When is enough, ENOUGH?
Whenever you decide it is. The Court has the ability to issue what's commonly known as a Restraining Order, known in Florida as an Injunction, which prohibits contact with the party/parties in seeking the Injunction. The Injunction is to provide the victim with immediate protection through the civil court.
What are the steps necessary for an Injunction to be put in place?
- File a Petition for Injunction with the Clerk of Courts
- Judge reviews the Petition and any supplemental documents and has three options:
- Deny the Injunction with the stated reasons
- Issue a Temporary Injunction with a Hearing scheduled.
- Deny the Injunction but a Hearing is Scheduled
- If a Hearing is Scheduled, then it must take place within 15 days of filing the Petition for Injunction
- The Opposing Party must be served the requisite court filings.
- At the Hearing the Court will either:
- Grant a Final Injunction
- Must state: provisions, until a specific date or until further order of the Court and must serve Respondent.
- Deny the Injunction
What is Required in a Properly Filed Petition for Injunction?
The Petitioner (party filing the Injunction), must be a Victim of Domestic Violence or be in Imminent Danger of becoming a Victim of Domestic Violence. Domestic Violence includes:
- Any Assault, Aggravated Assault, Battery, Aggravated Battery, Sexual Assault, Sexual Battery, Stalking, 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 MUST consider all relevant factors alleged in the petition for Injunction when determining whether the Petitioner has a “reasonable cause to believe he or she is in imminent danger of becoming a Victim of Domestic Violence.” Some relevant factors, include, but not limited to:
- The history between the Petitioner and 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 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 or 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.
Who is considered a Family or Household Member?
A Family or Household Member includes:
- Spouses, Former Spouses, Related by blood or marriage, Presently living together as if a family, Previously lived together as a family, or Parents of a child together.
To Grant an Injunction on a Temporary Basis without a Hearing, the Court must determine if there appears to exist an Immediate and Present Danger of Domestic Violence. The Court is only permitted to review the verified pleadings or affidavits; except the Court may take judicial notice of prior court records where an Imminent Danger has been alleged. If a Temporary Injunction is Granted, the following Relief is Possible:
- Retrain Respondent from committing any acts of Domestic Violence.
- Restrain Respondent from contact with Petitioner.
- Award Petitioner temporary exclusive use and occupancy of the dwelling that the parties share or excluding the Respondent from the Residence of the Petitioner.
- Specify distances the Respondent must stay away from the Petitioner; the dwelling; the place of employment or school; school, the children attend; any place the Petitioner frequently visits, such as a parent’s home or child’s daycare; and the auto of the Petitioner.
- Exclude Respondent from Petitioner’s place of Employment or School.
- Exclude Respondent from places frequented regularly by Petitioner.
- Award a Temporary Parenting Plan, including a time-sharing schedule which may award the Petitioner up to 100% of the time-sharing.
- Order Respondent to surrender any firearms and ammunition in his or her possession to the specified sheriff’s office.
- Order such additional relief as the Court deems necessary to protect the Petitioner from Domestic Violence.
To Deny the Injunction without a Hearing, then Court finds no basis for issuance of the Injunction and the Court must state the legal grounds for the Denial. When the only ground for Denial is non-appearance of an Immediate and Present Danger of Domestic Violence, the Temporary Injunction may be Denied, but the Court shall set a full Hearing on the matter.
A Final Judgment of Injunction for Protection against Domestic Violence may include all of the relief listed under Temporary Injunctions as well as:
- Be effective Indefinitely; until Modified or Dissolved by the Judge at either party’s request, upon notice and Hearing.
- Expire on a date set certain at the Judge’s discretion.
- Order a Substance Abuse and/or Mental Health Evaluation for the Respondent and to attend any treatment recommended.
- Establish temporary Alimony.
- Provide Restitution to Petitioner.
- The Court Shall Order the Respondent to enroll and complete a Certified Batterer Intervention program if:
- Finds that the Respondent willfully violated the e-parte Temporary Injunction;
- The Respondent , in this State or any other State, has been convicted of, had adjudication withheld on, or pled no contest to a crime involving violence or a threat of violence; or
- At any time in the past in this State or another State, an injunction has been entered against the Respondent after a Hearing with notice.
- Must state that if found in violation of this Injunction, it is in violation of a first-degree misdemeanor.
As a former Assistant State Attorney I have prosecuted hundreds of cases involving domestic disputes. When I was stationed in Misdemeanor court and handles Domestic Battery cases; I had more trials in that area in the entire 7th Judicial Circuit. When a Victim has finally had enough and stood up for themselves, it was my honor and duty to fight for them against their abuser. If you are a victim of Domestic Violence and are in need of protection, please call or contact my office to schedule a consultation.
How can I Modify an Injunction for Protection Against Domestic Violence?
A party seeking a dissolution of an injunction must demonstrate that the scenario underlying the injunction no longer exists so that the continuation of the injunction would serve no valid purpose. A party opposing the dissolution of the injunction must demonstrate that he or she “reasonably maintains a fear of becoming a victim of domestic violence.” The Court has broad discretion in granting, denying, dissolving or modifying an injunction unless a clear abuse of discretion is demonstrated. An evidentiary hearing is required on a motion to modify or dissolve an injunction when the motion is legally sufficient.
Different Orders of Protection Against Violence: Repeat Violence, Dating Violence, Sexual Violence, Stalking.
Repeat Violence occurs when:
- There is no "domestic relationship" as outlined above.
- The Petitioner must please and prove he or she has been the victim of two incidents of violence or stalking (as outlined above)
- One of the incidents must have occurred within 6 months of the filing of the Petition and directed against the Petitioner or Petitioner’s immediate family member.
Dating Violence occurs when:
- Violence between individuals who have or have had a continuing and significant relationship of a romantic or intimate nature.
- The Court must consider 3 factors when determining whether a “Dating Relationship” exists:
- The relationship existed within the past 6 months;
- Relationship was characterized by the expectation of affection or sexual involvement between the parties; and
- The frequency and type of interaction was that the persons were involved over time and on a continuous basis during the course of the relationship.
Sexual Violence occurs when:
- One incident of sexual battery; a lewd or lascivious act committed upon, or in the presence of, a person younger than 16; luring or enticing a child’s sexual performance; or any other forcible felony where a sexual act is committed or attempted.
- The Petitioner Must report the incident to law enforcement and be cooperating in any criminal prosecution against the Respondent.
Stalking occurs when:
- Willful, Malicious, and Repeatedly following or harassment of another person.
- Includes Cyberstalking; which means to engage in a course of conduct to communicate, or cause to be communicate, or cause to be communicated, words, images, or language by and through the use of electronic mail or electronic communication, directed at a specific person, causing substantial emotional distress to that persona and serving no legitimate purpose.
How do I Fight Against False Allegations?
In many cases involving divorce and custody issues, it can become nasty with false allegations of abuse being filed with Court. If you have been served with a Temporary Order of Injunction or have a hearing scheduled for a Final Injunction hearing; you need to immediately contact my office for a consultation. These serious and false allegations can lead to a plethora of adverse consequences including, but not limited to: no access to your children, no access to your marital residence, mandatory attendance of a 26 week Batterers Intervention Program, and Gun rights taken away (which also means no hunting). I will aggressively defend your rights in Court against any and all False or misleading Allegations.
If you are a victim in need of Protection please contact my office to schedule a consultation.
With offices in Ormond Beach and Daytona Beach, the Frankel Law Firm provides clients throughout Volusia and Flagler Counties with exceptional legal services in all aspects of family law. The firm's areas of expertise include jurisdictional divorce issues; marital property characterization, valuation, and division; spousal and child support; child custody cases; paternity matters; adoptions, and prenuptial, postnuptial, and marital settlement agreements.
120 E Granada Blvd., Suite 203
Ormond Beach, FL 32176
(386) 317 4641
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