DOMESTIC VIOLENCE, RESTRAINING ORDERS AND INJUNCTIONS
Florida law lets people pursue Domestic Violence crimes against family or household members. Fortunately, you can file injunctions, criminal charges or both. This page explains how the processes, one civil and one criminal, work.
Domestic Violence Relationship
Unlike most cases, Domestic Violence requires a relationship between the parties. Injunctions and crimes require proof of a familial or household member relationship. The law defines it. It’s pretty wordy.
A family or household member means spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family or who have resided together in the past as if a family, and persons who are parents of a child in common regardless of whether they have been married. With the exception of persons who have a child in common, the family or household members must be currently residing or have in the past resided together in the same single dwelling unit.
This relationship must be proved or the charge changes. Check out my blog post on a recent case where the lawyers mix up the jury instructions on the definitions of Battery and Domestic Violence Battery.
Restraining Orders and Injunctions
Injunctions bar people from contacting you. Florida offers five types of injunctions, the most common Domestic Violence. Domestic Violence injunctions target certain crimes against family or household members. In addition, you can file injunctions for Sexual Violence, Dating Violence, Repeat Violence and Stalking. Each of these options lets you get immediate help from the court to keep someone dangerous away from you.
Firstly, Sexual violence Injunctions require proof of a Sexual Battery, Lewd Act, luring or enticing a child, sexual performance by a child or a forcible felony involving a sex act. Consider at my page on Sex Crimes to learn more about these offenses.
Secondly, Dating Violence Injunctions require proof of violence between individuals who have or have had a continuing and significant relationship of a romantic or intimate nature. It does not include violence in a casual acquaintanceship.
Thirdly, Repeat Violence Injunctions require proof of two incidents of violence or stalking committed by the respondent against the petitioner or immediate family. One incident must happen within 6 months of filing the petition.
Lastly, Stalking Injunctions require proof that a person willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person.
Restraining Order and Injunction Procedure
First, you file a Petition for Injunction with the Clerk of Court. To make it easier, they provide a form for you. Most importantly, you must properly describe the abuse. Look at my page explaining Assaults and Batteries for help. It’s vital to win. If you file one of the other four injunctions, you must track the words in the statute.
Next, judges review every Petition for Injunction. Unless you draft it properly, they deny the Petition. If a judge grants your Petition, he or she will sign a temporary restraining order. It prevents the person from contacting and coming near you. Law enforcement serves the order quickly to best protect people in need. The order sets a final hearing to give both parties their day in court.
Lastly, judges issue final injunctions after a hearing on the merits. Usually, hearings happen within a couple weeks. Judges set these matters fast to protect victims. But they also protect the wrongly accused. No one waits too long for an answer.
You can bring witnesses to the hearing. You can admit pictures and other items. Once the parties finish their cases, the judge rules. Sometimes, people have children in common. These injunction orders sort out custody too.
While you’re here, check out my blog post on a recent case about who can file a Domestic Violence injunction.
Criminal Domestic Violence
If police appear at the scene, they’ll likely arrest someone. Police separate parties to reduce the tension. An arrest makes that easy. Once arrested, someone appears before a criminal judge. Although the police issue no contact orders, the judge issues one too.
You don’t have to choose between an injunction and criminal charges. The same fight can be addressed by a criminal and a family judge at the same time. You can choose either or both paths for the above issues, except for Sexual Violence. Those Petitioners must typically report the offense to police and cooperate with the proceeding. You can file a Domestic Violence and other three injunctions without reporting the attack to the police.
Besides the relationship, the proof for these crimes is the same as other crimes. They just vary in punishment by injury to the victim. For instance, misdemeanor cases carry more severe penalties than a regular Assault and Battery. Courts must sentence defendants to counseling as a condition of the minimum 1 year term of probation unless the judge specifies why this would be inappropriate. If a person causes bodily harm to another, he must serve 10 days in jail for a first offense, 15 days for a second offense and 20 for a third and subsequent unless the court sentences the person to prison. Felony Domestic Violence offenses include Aggravated Assault, Aggravated Battery, Sexual Assault, Sexual Battery, Aggravated Stalking, Kidnapping, False Imprisonment and Domestic Battery by Strangulation.
Talk to an Experienced Florida Criminal Defense Attorney!
Just because you’ve been arrested, it doesn’t mean the State will file charges. The State reviews evidence, talks to witnesses and gathers proof. Without proof, the case ends quickly. A good lawyer can help you avoid charges. Sometimes, filing charges isn’t in everyone’s best interest.
For years, Mr. Brown worked with a family law firm handling injunctions for their clients. He’s filed them and he’s defended them. He’s even defended a client facing both an injunction and criminal charges at the same time. Because these matters are especially tricky, call Mr. Brown as soon as you can to see if he can help you best protect yourself! Reach out over the phone at (954) 524-6700 or through the Contact Page if you have any questions.
