Were you a victim of domestic violence or recently served with a Petition for Injunction Against Domestic Violence? Are you in imminent fear that you may become a victim of domestic violence in the immediate future? It is important for you to understand your legal options and the consequence of your actions when dealing with the Court, and the opposing party(s) when a domestic violence action has been, or will be, initiated.
Know Your Rights
Oftentimes clients will ask us about “restraining orders” – Florida no longer has a legal cause of action for what most people understand a restraining order to be. Florida now uses the term “Injunction for Protection Against Domestic Violence” when dealing with issues comparable to when an individual once sought a restraining order. It is important to note that Florida courts will not issue a “mutual injunction” within the same court order. However, it is entirely possible for both the Petitioner and Respondent in one domestic violence action, to be the opposite party in a similar domestic violence action. The dueling actions could even involve the same incident. In such a case, the Court will open two (2) separate domestic violence actions, assign them separate case numbers, and enter injunctions as to each party accordingly.
If you are the “Petitioner” in a domestic violence action, you are the person seeking the protection. If you are the “Respondent” in a domestic violence action, you are the person from whom protection is being sought, i.e., the defendant.
Your Attorney’s Obligation To You
Your attorney’s obligation is to be your staunchest representative and an officer of the Court. We will provide you with the most practical and straightforward advice available in assessing each client’s situations and goals.
Attorney Client Privilege
In Florida, the attorney-client privilege is codified in Section 90.502, Florida Statutes. This law states that, generally, communications between a client and their attorney are confidential. In other words, without a legal waiver or other specific exceptions, you and/or your attorney cannot be compelled to disclose communications made in performing our services.
Relationship Based On Trust
From the initial consult through the final hearing, it is of the utmost importance for attorneys and clients to be truthful with one another and for there to be trust between them. The pair are a team and trust is essential. We believe in being transparent with our clients and we cannot afford to be surprised at any time in a case because a client has failed to be transparent with us. If the idea should ever cross your mind and you question, Should I tell my attorney this? The answer should always be, Yes – we are available to then tell you if “this” may be an issue.
Your Attorney’s Role
An attorney may have several roles throughout a case, especially in family law. We may be your representative, your advocate, your advisor, an/or your counselor.
When a Petitioner seeks an Injunction for Protection Against Domestic Violence, they are not always pursuing criminal charges against the Respondent as well. Injunctions for Protection Against Domestic Violence are “civil” not “criminal” actions. They are sought by individuals, not the State Attorney’s Office. If you are served with a Petition for Injunction for Protection Against Domestic Violence you are not being charged with a crime. However, it is extremely important to note, that if an Injunction for Protection Against Domestic Violence has been entered against you, then any violations of that Injunction could be a criminal offense.
“Domestic violence” means 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 or household member by another family or household member.
“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.
All documents filed with the Clerk of Court in seeking a Petition for Injunction Against Domestic Violence are public record. It may be possible for either party to request that specific information be kept confidential (such as an address, or names and dates of birth of children), however, the facts and any incidents as alleged in any petition and/or any response thereto will be able to be read by anyone who may request to do so.
A Petitioner may pursue an Injunction for Protection Against Domestic Violence on their own behalf, or on behalf of a family or household member.
Once a Petitioner has filed their Petition for Injunction Against Domestic Violence with the Clerk of Court in the county in which they seek protection, then, generally, the Court will review the Petition within twenty-four (24) hours and decide whether the facts as stated on the face of the Petition warrant that a “Temporary Injunction for Protection Against Domestic Violence” be entered. Such a Temporary Injunction is just that – temporary – it is effective for a fixed time period not to exceed fifteen (15) days. The Court will schedule for a hearing to be held within fifteen (15) days from the issuance of a Temporary Injunction to determine whether a Final Injunction should be entered.
If you intend to pursue or defend against a Petition for Injunction and/or any Temporary Order, you must be present at such a hearing. It is highly recommended that you are represented by counsel at that time, preferably sooner. If you are not represented by counsel, it may be entirely possible for the judge to require that a full hearing be held that afternoon where you will be required to present witness testimony, evidence, and argument as to why you believe the injunction for protection either should, or should not, be granted.
Oftentimes, it may be possible to request a continuance of a hearing so that you may obtain counsel prior to going to that hearing – if this is your wish, you need to file a motion with the court requesting a continuance stating your reasons and request a continuance from the judge at the hearing. The judge will then have consider whether you are using the request for a continuance as a delay tactic, your reasons for requesting same, and the prejudice to the other party which would come from granting a continuance.
Even though an Injunction for Protection Against Domestic Violence is not a “criminal” action it is an Order of the Court and can carry with it some serious effects. For instance, if an Injunction for Protection Against Domestic Violence has been entered against you, you are not permitted to possess any firearms or ammunition. See Section 790.233, Florida Statutes. Should you be in possession of a firearm or ammunition, you are in violation of the injunction and have committed a first degree misdemeanor – a crime. Petition for Injunction Against Domestic Violence will likely appear on background checks. In addition, if you frequently travel, you may experience increased screenings at airports.
Injunctions for Protection Against Domestic Violence may effect parental responsibility of minor children, timesharing and custody schedules, and even temporary spousal and temporary child support.
A Final Judgment of Injunction for Protection Against Domestic Violence can be entered for a fixed period of time or it can continue indefinitely.
Either party can request that a Final Judgment of Injunction for Protection Against Domestic Violence be modified, with sufficient legal reason, at any time.
In sum, if you are pursuing or defending against an Injunction for Protection Against Domestic violence, know that the consequences and ramifications can be far reaching. It is important for you to understand and know what is involved in these highly fact intensive matters. Please reach out to our office and schedule a consult with Mr. Gregory M. Ruster, Esq. and/or Mr. C. Garrett Gaa, Esq. to discuss your specific situation.