Obtaining a court order for protection against domestic or repeat violence
If you are the victim or served as the respondent in a domestic violence or repeat violence petition, it is important that you immediately contact an experienced criminal defense or family law attorney who is familiar with domestic violence or repeat violence court orders.
As a criminal defense and family law attorney in Fort Lauderdale, I often receive questions about how a person would seek to obtain an injunction for protection against domestic or repeat violence. I created this “Cheat Sheet” to help my clients understand the requirements for obtaining such injunctive relief.
To obtain a court order, a person (with or without the help of a criminal defense or family law attorney) must first complete a detailed petition that states the reasons for seeking a court order. The petition can often be found online through the website of your local clerk of courts. The person requesting the precautionary measure is the PETITIONER. The person who allegedly committed the act of violence is the DEFENDANT. The petitioner may also receive the petition in her county courthouse. As long as the petitioner is not in immediate danger, he would encourage him to collect her thoughts and create a detailed summary of any acts of violence committed by the respondent during their relationship before completing the petition. Note that the petitioner can always modify her petition at a later time. Court staff are always available to help the petitioner write her petition. Most courts will provide interpreters, if needed.
The Judge on Duty (Call Judge) will review the petition and determine if it has sufficient legal basis (“clear and solid evidence”) to issue an ex parte Order issuing injunctive relief against the defendant. The Judge on duty will base his decision on the criteria listed below. Whenever the judge issues a temporary injunction, the local sheriff’s office will attempt to serve the defendant with such notice. Upon receipt of the temporary injunction, the respondent will not be allowed to have direct or indirect contact with the petitioner unless the Court modifies (or removes) the Order. Indirect contact includes contact by third parties and correspondence by email and text messages. The injunction provides the petitioner with “protection” from the defendant until the next court hearing, usually within 14 days of the issuance of the injunction. At that time, the defendant may choose to defend himself against the charges in the petition and ask the Court to strike down the Order. Both parties may try to retain a criminal defense or family law attorney to represent their interests at such hearings.
At the Court hearing, a judge will determine whether to modify or remove the temporary order after hearing testimony from the petitioner, respondent, and relevant witnesses. The Court may choose to amend the Order from a temporary injunctive relief to a permanent injunctive relief depending on the seriousness of the facts.
In Florida, a petitioner has the right to obtain a court order 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, assault, aggravated assault, sexual assault, sexual assault, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense that results in physical injury to or death of a family or household member by another family or household member.
Family or household member includes: a spouse; a former 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, regardless of whether the petitioner lives with the respondent.
The petitioner must demonstrate through competent substantive evidence that he was a victim of domestic violence OR that he has reason to believe that he is in imminent danger or that he is becoming a victim of domestic violence.
Florida Statute 784.046 – Repeated Violence
The petitioner must demonstrate through competent substantial evidence that they were the victim of: ONE (1) incident of stalking or TWO (2) incidents of assault, battery, or sexual assault, one of which must have occurred within the last six months. Anyone may be eligible to obtain a repeat violence injunction.
Florida Statute 784.046 – Dating Violence
“Dating violence” means any assault, aggravated assault, battery, aggravated assault, sexual assault, sexual assault, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense that results in bodily injury or death.
Dating violence means violence between people who are in, or have been in, an ongoing and significant romantic or intimate relationship. The relationship must have existed within 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 people being involved over time and continuously 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 need to show through competent substantive evidence that he/she was a victim of dating violence AND has reason to believe that he/she is in imminent danger of becoming a victim of another act of dating violence OR the petition has reason to believe that he/she is in imminent danger of becoming a victim of dating violence.
Florida Statute 784.046 – Sexual Violence
Sexual violence means ANY incident of sexual assault; a lewd and lascivious act, committed upon or in the presence of a person under 16 years of age; attract or seduce a child; sexual performance of a child; Or any other felony forceful offense in which a sexual act is committed or attempted, regardless of whether the State’s Attorney filed, reduced, or dismissed criminal charges based on the incident.
The petitioner will need to show that he/she is a person who is a victim of sexual violence or the local parent and guardian of a minor child living in the home who is a victim of sexual violence AND has reported the incident to the police AND is cooperating in any criminal proceedings against the respondent. Alternatively, the petitioner can show that the defendant who committed the sexual violence against him or his minor child was sentenced to imprisonment in state prison for the sexual violence AND the defendant’s term of imprisonment has expired OR will expire within 90 days.
If you are the victim (petitioner) or received notice that you are charged with domestic violence or repeat violence (respondent), you should immediately contact an experienced criminal law or family law attorney to review your case.
The information on this article site was developed by Lyons, Snyder & Collin, PA for informational purposes only and should not be considered legal advice. The transmission and receipt of information in this article does not form or constitute an attorney-client relationship with Lyons, Snyder & Collin. Persons receiving the information in this article should not act on the information provided without seeking professional legal advice.