Domestic violence is a pattern of power and control. An abuser can use one or multiple ways to control another person. The common types of abuse are financial control, social isolation, emotional abuse, and physical violence.
In Florida, civil restraining orders are called injunctions for protection. There are different types that one can get depending on the relationship between the parties. The categories are domestic violence, stalking, dating violence, sexual violence, and repeat violence. The first step is to determine the nature of the relationship. The Spring of Tampa Bay attorneys are not funded to handle neighbor disputes or disputes between roommates but those are handled in Domestic Violence Court. The most common type of injunction for protection (IFP) we handle is a domestic relationship which means you are married, have lived together as a family, or have a child in common. For a domestic violence injunction, the law requires there to be recent physical violence or the threat of imminent harm. In other words, if there is financial control, social isolation, or emotional control but no physical abuse or imminent harm, then Florida law does not allow an injunction for protection.
The person seeking an IFP can get the correct form at the courthouse or print it from the Clerk of Court website. The form is submitted on an ex parte basis which means the judge reviews it and decides whether to grant a temporary IFP solely based on the petition filed by the petitioner. If the judge grants the temporary IFP, then by law there is a hearing held within 15 days, and the respondent gets served with a copy of the petition and the temporary IFP. At the hearing, both parties tell the judge their position, and the judge rules on whether the temporary IFP should be made a final IFP and for how long.
A dating violence injunction is when there has been a purely dating relationship within the past six months. There had to have been recent physical violence and a reasonable belief or expectation that the violence will occur again.
There is also an injunction for stalking. If the stalking type behavior occurs within a domestic relationship, you can file a domestic violence petition. Stalking is unwanted contact with a person who has no reason to be contacting you, and the unwanted contact is causing you substantial emotional distress. There must be at least 2 incidents of stalking. Cyberstalking is a common form of stalking behavior although it can be very difficult to prove.
There is also a sexual violence injunction where there has been a sexual act committed, the crime has been reported to law enforcement and the sexual violence survivor is cooperating with law enforcement or the state attorney if there are criminal proceedings.
The final type of IFP allowable under Florida law is repeat violence. This is used where there is no domestic or dating relationships such as co-workers or neighbors. It requires at least two acts of physical violence or stalking directed against the petitioner or the petitioner’s immediate family; at least one of the incidents must have occurred within the past 6 months.
What could be potential penalties for a domestic violence case?
When a temporary injunction is entered, the respondent must turn over all firearms to law enforcement. There are some jobs that require guns. If the Court enters a final injunction, then some respondents will lose their jobs or not get a job if the background check reveals the final injunction.
A final injunction sets forth what the respondent is not to so if the respondent violates that injunction, and the petitioner reports the violation it to law enforcement, then the violation may result in criminal charges against the respondent. In other words, the initial injunction itself is civil, but it can move into the criminal case if the SAO elects to prosecute on a violation of an IFP.
What to do if someone is accused of a domestic violence case wrongly?
The respondent attends the hearing and respectfully presents to the court their side of the case. Provide the court with evidence, if any, that would show that the petitioner is, in fact, the abuser or simply that the petitioner is not being truthful. Most judges are comfortable with parties appearing without an attorney and asking direct questions to get to the bottom of what is going on.
How can an attorney help somebody who has filed a petition?
The first decision is whether a person should file for an IFP. An attorney is helpful in reviewing the facts and the law to determine whether there are sufficient facts to get an IFP. The decision depends on the facts and the survivor’s goals. We also discourage people who have criminal charges pending, even if they were wrongfully charged, from filing IFP’s even though they were the true victim; the petition is a statement under oath and that can be used in the criminal case.
Another reason not to file is if you can safely get away get away from your abuser. Conversely, if you come to Florida to get away from your abuser, and your abuser has no idea where you are, then you may not want to file because he or she will know the state and the county of your location.
Situations involving children are more problematic and an attorney can be helpful in discussing parental legal rights. Attorneys can also be helpful with the narrative which is the portion of the DV petition which describes what happened and why the petitioner is requesting an IFP be issued.
If the petitioner does get a final injunction, an attorney can instruct on what needs to be done if the respondent violates the injunction. The violation is reported to law enforcement and the petitioner can file an affidavit of violation in the injunction case. This may help the petitioner extend the injunction when it is set to expire based on the respondent’s violation.