Florida law provides a mechanism for members of the same family to seek an injunction for protection against domestic violence (“injunction”). An injunction, also know as a restraining order to many non-lawyers, is a powerful tool because of its immediate ability to remove one party from his or her home and/or child(ren). As an attorney, I regularly represent clients who have filed for an injunction and clients who have been served with a petition and temporary injunction. While it is obvious that protecting a person from domestic violence is positive for the victim and society, less is written about defending injunctions and the abuse of the injunction process.
Several times a year I appear in injunction court defending a respondent because a spouse in a dissolution of marriage elects to petition the court for an injunction, alleging that a client has engaged in domestic violence or they believe they are about to be the victim of domestic violence. In a significant percentage of these cases, the allegations in the injunction petition are unfounded. Why? Once the injunction is served, the respondent is barred from contact with the petitioner, his or her home, and in some cases their children. In cases with children, an injunction for protection provides a significant advantage because the person seeking the court’s protection is immediately awarded exclusive use of the marital home and occasionally 100 percent of the overnights with the parties’ child(ren). The party with exclusive use of the marital home during the pendency of a dissolution proceeding is much more likely to gain majority time-sharing in the final judgment of the dissolution of marriage.
Contact an Attorney After Being Served
Once a petition has been filed alleging the minimum injunction requirements, a temporary injunction is issued prohibiting contact with the petitioner (and in some cases minor children). Being served with an injunction can be a traumatic event because the respondent is often left homeless — scrambling to obtain resources to meet the necessities of life.
Even if the temporary injunction is unfounded, it is important to obey all terms of the injunction. The only place to challenge an injunction is in court. From the time of service, a temporary injunction hearing typically occurs less than two weeks from the service of the injunction petition. Given this short window of time, it is critical to hire an attorney immediately. If the temporary injunction is made permanent, you risk losing basic rights such as possession of your firearms and access to your home.
If a petitioner has made unfounded allegations, an experienced injunction attorney reduces the chances that a permanent injunction will be entered against you. An attorney will be able to collect and organize evidence prior to the injunction hearing and present evidence and case law to the judge at the injunction hearing. Here are some examples of the type of evidence that is useful in defending injunctions:
- Police Officers – In many cases, police officers are called when alleged domestic violence has occurred. Police officers typically interview both parties and observe the situation. If police officers do not observe evidence of domestic violence, they will not typically arrest the alleged aggressor. Testimony by a police officer than he or she did not observe domestic violence is very effective when defending injunctions.
- Other Witnesses – Neighbors or other people who were on the scene when the alleged domestic violence occurred.
- Written Communication from the Petitioner – It is not uncommon for petitioner to have sent emails or texts to the respondent after the alleged violation has occurred. In certain cases, the tone or content of the communication may provide an indication that the petitioner has not been a victim of domestic violence.
- Diagrams – Diagrams of homes can be useful if the injunction petition contains factually inaccurate information that can refute claims in the petition.
Motion to Dismiss Injunctions for Protection Against Domestic Violence
Florida has a large body of case law that defines the parameters of when an injunction can be issued. It is not uncommon for self-represented individuals to petition for an injunction without alleging sufficient facts to sustain their burden to obtain an injunction. “The party seeking an injunction must demonstrate ‘an objectively reasonable fear that he or she is in imminent danger of becoming a victim of any act of domestic violence.’ ” Arnold v Santana, 122 So.3d 512, 514 (Fla. 1st DCA 2013) quoting Randolph v. Rich, 58 So.3d 290, 291 (Fla. 1st DCA 2011) (quoting section 741.30(1)(a). It not enough to have unreasonable fears or base an injunction on insults. In cases where the petitioner has failed to meet his or her burden, an injunction may be disposed of by filing a motion to dismiss.
If you have been served with a temporary injunction, it is important to act quickly. My office offers a free forty-five (45) minute consultation for people who have been served with an injunction. To arrange for a consultation with an injunction defense attorney, call my office or contact me through the contact form. I look forward to hearing from you.