|Posted on June 18, 2018 at 2:30 PM|
Florida law provides that any citizen can petition the circuit court for an injunction for protection against domestic violence, dating violence, sexual violence, repeat violence, and stalking. If an injunction is granted, the implications for a respondent can be severe, including, but not limited to: the loss of firearms, the use of the injunction during a custody or timesharing dispute , and an arrest without a warrant if there is a violation of the injunction. This article will discuss some general observations and legal issues that occur during these proceedings.
Injunction hearings in Pinellas County are held at the St. Petersburg courthouse, the Clearwater courthouse, and stalking/cyberstalking injunctions are held at the Criminal Justice Center. The overwhelming majority of petitioners and respondents represent themselves and are unware of the rights they have. Frequently, the presiding judge will explain what the injunctions are and then call the respective parties. Many judges will ask the respondent whether he or she agrees to the injunction and, if a person agrees, then the injunction is granted without the respondent really knowing the collateral effects of agreeing to the injunction.
Somewhat recently, judges and attorneys have had two very reasonable compromises in lieu of an evidentiary hearing and a final judgment of injunction. First, presiding judges have suggested that one or both parties agree to continuing or allowing a temporary injunction to remain in place for an extended period of time and then, provided no one moves for a hearing or to extend the injunction, the temporary injunction is dismissed. This is beneficial because it provides protection to a party or parties, firearms are still removed, and, if there is unwanted contact, the violator can still be arrested without a warrant. It also allows the respondent to be able to say that a final injunction was never entered against them, but was instead dismissed. Second, if there is a pending dissolution of marriage or a paternity action, the parties could dismiss the injunction petition in favor of a chapter 61 “no contact” order. If the no contact order is violated, the petitioner can file a motion for contempt in the pending dissolution or paternity action, have a hearing before a judge, and have the respondent incarcerated for up to six months upon the finding a violation of the “no contact” order. The respondent can say that the injunction was dismissed and not worry about being arrested without a warrant. Both are good compromises for attorneys representing a petitioner where the evidence is weak or when representing respondents when the allegations are particularly bad.
If a compromise is not reached, the petitioner has the burden to prove the incidents by the greater weight of the credible evidence and both parties are entitled to a full panoply of due process rights, including notice, cross-examination, adequate hearing time, and the ability to present witnesses and evidence. The Second District Court of Appeal has repeatedly reversed injunctions when a trial court violates any of these rights. On occasion when the evidence is lacking, judges will only grant an injunction for a short period of time, 30 days to three or six months, some may say to prevent meaningful appellate review since the injunction would expire prior to an appellate decision rendering the appeal moot. The Second District has also held that this procedure does not make the appeal moot because, even though the injunction expired, the collateral consequences that follow from the injunction, make the injunction reviewable. Uncivil behavior and general relationship problems are insufficient to grant an injunction.
Attorneys and judges must be aware of a specific due process right that appellate courts have paid particular attention to and which has been the subject Pursuant to Florida Statute and case law, petitions for injunctions must specifically allege the acts that the petitioner believe give rise to the injunction. Florida appellate courts have determined that a petitioner must state what events occurred in an injunction petition in order to be able to testify to those events at the return hearing. If a petitioner testifies to acts not alleged in the petition, a respondent is not properly put on notice of those acts, he or she cannot properly defend against them, and it thus violates due process. A respondent should object during the return hearing if this ever happens or else risk an argument from the petitioner that the issue was waived for appellate review due to the lack of a contemporaneous objection.
In conclusion, civil injunctions in Florida are very serious proceedings and great care should be taken when representing an individual on an injunction case or presiding over return hearings. Due process rights apply to both parties, the allegations must be alleged in the injunction petition, and appellate courts are especially sensitive to these injunctions and the collateral consequences that follow.
Categories: Domestic Violence Injunctions