What is an Injunction / Restraining Order?
Injunctions, commonly known as “restraining orders” are court orders of protection against violence. The petitioner is the person who files, or “petitions” for the injunction, while the respondent is the person for whom the injunction is requested for. Florida has four types of injunctions:
- Injunction for Protection Against Domestic Violence
- Injunction for Protection Against Dating Violence
- Injunction for Protection Against Repeat Violence
- Injunction for Protection Against Sexual Violence.
It is very important to realize that violating an injunction can be very dangerous. Depending on the nature of the violation, serious criminal charges may result. These charges range from a first degree misdemeanor, punishable by a maximum of 1 year in county jail, to a third degree felony punishable by 5 years in Florida State Prison.
The Injunction Process
The injunction process begins when the petitioner goes to the courthouse and petitions the court for a particular type of injunction. For a petitioner’s temporary injunction to be granted, the judge needs to find “clear and convincing evidence” of either domestic violence, dating violence, repeat violence, or sexual violence. Clear and convincing evidence is more than the “preponderance of the evidence” standard (51% certainty), but less than the “beyond a reasonable doubt” standard (approximately 95-100% certainty).
The petition requests the court to place an initial, temporary injunction against the respondent. The respondent is not given the opportunity to respond in any way. Unless the petition for the injunction is facially insufficient (extremely and severely lacking), the court will grant the temporary injunction without hearing even a word from the respondent.
The court, then, sets a final hearing to determine whether a permanent injunction will be put into place. The time frame under which the hearing for the final injunction is to be heard is 15 days from the date of the temporary injunction. At the final hearing, you, the respondent, will have the opportunity to offer witnesses and/or any other evidence to support your position.
Many people wrongly assume that they can represent themselves at a final injunction hearing without an attorney. Again, anyone proceeding to a permanent or final hearing for an injunction without a lawyer should be aware that the court follows the Florida Rules of Civil Procedure and the Florida Rules of Evidence. Injunction hearings are not the same as those seen on television. Don’t expect The People’s Court! If you plan on going into court on your own, you’d better know those rules!
How Long is the Temporary Injunction Effective?
Generally, 15 days. According to the Florida Statutes, “any such ex parte temporary injunction shall be effective for a fixed period not to exceed 15 days. However, an ex parte temporary injunction granted under subparagraph (2)(c) 2 is effective for 15 days following the date the respondent is released from incarceration. A full hearing, as provided by this section, shall be set for a date no later than the date when the temporary injunction ceases to be effective. The court may grant a continuance of the ex parte injunction and the full hearing before or during a hearing, for good cause shown by any party.”
If a Permanent Injunction is Granted, How Long Will It Be Effective?
Generally, there is no, set “time limit” for a permanent injunction. According to the Florida Statutes, the terms of the injunction shall remain in full force and effect until modified or dissolved. Either party may move at any time to modify or dissolve the injunction. Such relief may be granted in addition to other civil or criminal remedies.
Consequences of an Injunction
Many people do not realize the full range of consequences that both temporary and permanent injunctions can have on one’s life. Possibly the worst aspect of an injunction is that it cannot be expunged or sealed from your record. Injunctions are civil – not criminal – in nature and they are public record. Any member of the general public can view your injunction when and if they search your name in the County Clerk’s record office or website. Employers routinely search these records to find out more about their employees and prospective employees. The presence of an injunction on your record can be the determining factor for whether you receive or keep a job.
An injunction can also have a profound effect on your family. Aside from the circumstances that brought about the injunction, injunctions can negatively affect pending or future divorce proceedings, custody disputes, and hearings for alimony or child support. In custody disputes, especially, an injunction on your record can be an important factor in the decision as to who will be the primary care-giver for your child.
In addition, injunctions can affect your reputation at work, especially when they involve two people who work in the same company / office and who are dating. Typically, one person files an injunction for protection against dating violence against their co-worker / significant other. When people who work in the same company or office file injunctions against each other, inter-office disputes between the two may ensue. Sometimes, the petitioner purposely files the injunction solely in an attempt to destroy the respondent’s reputation in the company.
Another serious consequence is the potential loss of second amendment rights. When a temporary injunction is granted against you, the respondent must immediately surrender any and all firearms to local law enforcement and give up the right to carry firearms. The restrictions on firearms could last as long as the injunction is in effect. Note that if the court denies or dismisses the injunction, your attorney can file a special motion requesting the return of your weapons.
Also, a standing injunction gives the petitioner a tremendous amount of power over respondent. The petitioner can call the police anytime claiming that the respondent violated the injunction. For example, if you are the respondent in a standing injunction and you mistakenly run into the petitioner at the grocery store or at a gas station, the petitioner can contact local authorities and have you arrested for violating the terms of an injunction.
Why Do I Need a Lawyer for an Injunction?
Many respondents in injunction cases feel that injunctions are minor cases that can be resolved without an attorney. This is a very serious mistake. Typically, the Domestic Relations Judge has already read the petitioner’s side of the story and has granted a temporary injunction. All of this happens before you, the respondent, ever see the inside of a courtroom. In addition, there is a lower standard of proof in these court hearings. A petitioner must only offer “competent, substantial” evidence that the respondent poses a threat of violence in order for the court to grant the petition for the injunction. Moreover, injunction hearings are formal court proceedings. In these hearings, both the Florida Rules of Civil Procedure and the Florida Rules of Evidence are in effect. Most non-lawyers are unaware of the evidentiary and procedural rules as well as how the court will weigh the evidence. Representing yourself is not a wise option.
The Injunction as a Weapon
Our firm has defended clients against every type of injunction. A recurring theme we see is the vindictive petitioner requesting the court for an injunction not to prevent further violence, but to serve some, other end. For example, the most common scenario typically arises out of a divorce in Family Law Court. Typically, a man or woman claims their former spouse committed domestic violence against them in an effort to gain some advantage in a custody battle in front of the Family Law Judge. To determine who should have responsibility for the home / residence in a custody battle, the Family Law Court takes into account whether there have been any acts of domestic violence by one partner against the other. As a consequence, many dishonest parents will file a false injunction against their spouse and use the domestic violence court to win a custody battle in Family Law court.
While the scenario above describes the most common type of frivolous injunction, there can be other dishonest reasons for filing an injunction as well. Sometimes, a petitioner may want to force a co-worker out of his/her office. As noted above, filing an injunction can cause inter-office disputes, ruin the reputation of a person in their company, and, ultimately cause them to be fired. Other times, the petitioner may want to spark a very serious criminal investigation against the respondent by filing a false petition against sexual violence. We have often seen step-children make false sexual allegations in their petition because they no longer want to live with a step-parent. We have also seen unmarried parents who create false sexual allegations in a petition for a sexual violence injunction in an effort to destroy any relationship between the respondent and their child.
What Happens if I Violate My Injunction?
According to Florida Statute 784.047, “a person who willfully violates an injunction for protection against repeat violence, sexual violence, or dating violence or a foreign protection order by:
- Refusing to vacate the dwelling that the parties share;
- Going to the petitioner’s residence, school, place of employment or a specified place frequented regularly by the petitioner and any named family or household member;
- Committing an act of repeat violence, sexual violence, or dating violence against the petitioner; or
- Telephoning, contacting, or otherwise communicating with the petitioner directly or indirectly, unless the injunction specifically allows indirect contact through a third party; commits a misdemeanor of the first degree, punishable by up to one year in county jail.”
As you can see, the penalties for violating the terms of an injunction are severe. Many violations happen accidentally when the petitioner and respondent run into each other in public. If you have been charged with violating the terms of your injunction, CONTACT our office immediately.