DOMESTIC VIOLENCE IN FLORIDA

Transcription

1 DOMESTIC VIOLENCE IN FLORIDA The Petitioner may go to court on his/her own (without an attorney) to petition for an injunction to protect him/her against domestic violence (assault or battery by your spouse whether the Petitioner are separated or not, or your former spouse), dating violence, repeat violence, or sexual violence. Doesn t the statute cover boyfriends, paramour s anyone you live or lived with? If you as the Petitioner feel you are the victim of such domestic violence, dating violence, repeat violence, or sexual violence, you should contact the office of the clerk of the circuit court in your county or the local domestic violence shelter for information and assistance. To obtain a Permanent Injunction for Protection Against Domestic Violence, the Petitioner must show the Court they are a victim of domestic violence, or have reasonable cause to believe that the Petitioner are in imminent or immediate danger of becoming a victim of domestic violence. HOW CAN I GET A DOMESTIC VIOLENCE INJUNCTION AGAINST? WHAT IS DOMESTIC VIOLENCE? 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 who is or was residing in the same single dwelling unit. WHAT IS AN ASSUALT Assault can occur if someone intentionally threatens to cause another personphysical violence, even if they do not touch the person. This threat must be by word and act, and the person threatening the Petitioner must have done something to make the Petitioner believe that he/she has the ability to cause the Petitioner physical violence, and the Petitioner must believe that this violence is about to happen. If the person uses a deadly weapon when committing this act, it is an aggravated assault. WHAT IS A BATTERY? Battery is when someone intentionally touches another without permission. If that person's touching causes the other great bodily harm or permanent disability or disfigurement, or if the person uses a deadly weapon, or if the Petitioner were pregnant and the person knew or should have known, the act becomes an aggravated battery. WHAT IS STALKING? Stalking is when someone purposefully follows or harasses another repeatedly over a period of time for no legitimate purpose, which causes a great amount of emotional stress on the person being followed. If in doing this they threaten your life or threaten to cause injury with the intent to cause the person reasonable fear for their safety, or if the Petitioner is a minor under 16 years old, then the act becomes aggravated stalking. WHAT SHOULD A PETITION INCLUDE AND A VICTIM SHOW AT HEARING? In determining whether a Petitioner has reasonable cause to believe he or she is in imminent danger of becoming a victim of domestic violence, the court shall consider and evaluate all relevant factors alleged in the petition, including, but not limited to: 1. The history between the petitioner and the respondent, including threats, harassment, stalking, and physical abuse. 2. Whether the respondent has attempted to harm the petitioner or family members or individuals closely associated with the petitioner. Deleted: the Deleted: that the Petitioner Comment [MSOffice1]: Maybe we should address what I put in earlier here. I think we should make it clear what repeat violence injunctions are for and how the court frowns upon the angry neighbor cases here. Deleted: WHO Deleted: GET Formatted: Font: Not Bold Formatted: Font: Not Bold Deleted: Petitioner. Deleted: Petitioner Deleted: to the Petitioner, Deleted: y Deleted: are Deleted: p

2 3. Whether the respondent has threatened to conceal, kidnap, or harm the petitioner's child or children. 4. Whether the respondent has intentionally injured or killed a family pet. 5. Whether the respondent has used, or has threatened to use, against the petitioner any weapons such as guns or knives. 6. Whether the respondent has physically restrained the petitioner from leaving the home or calling law enforcement. 7. Whether the respondent has a criminal history involving violence or the threat of violence. 8. The existence of a verifiable order of protection issued previously or from another jurisdiction. 9. Whether the respondent has destroyed personal property, including, but not limited to, telephones or other communications equipment, clothing, or other items belonging to the petitioner. 10. Whether the respondent engaged in any other behavior or conduct that leads the petitioner to have reasonable cause to believe that he or she is in imminent danger of becoming a victim of domestic violence. The Petitioner should bring to court with her or him any witnesses to the abuse or mistreatment by the Respondent, copies of police reports and/or medical records of abuse, photographs of injuries or damage to her or his home. Both the Petitioner and the Respondent will have an opportunity to present their side of the case to the judge. The court may grant an injunction for a set period of time or until further order of the court. During this time, the Respondent may not contact the Petitioner directly or indirectly through family or friends by phone, mail, , text messages or in person. If the Respondent does contact the Petitioner then Petitioner should contact law enforcement immediately explaining that the Petitioner has an injunction and the nature of the violation. TEMPORARY VERSUS PERMANENT INJUNCTION When a Petition is If the Petitioner does not get a permanent injunction and another incident of domestic violence occurs the Petitioner should immediately contact law enforcement and file another petition for injunction. WHAT HAPPENS IN COURT? A few things could happen at court. It all depends on whether the Respondent is served and whether he shows up to court.if the Respondent fails to appear for the hearing, the Petitioner will have a petitioner only hearing. The judge may still have a couple of questions to ask the Petitioner pertaining to personal belongings and perhaps other matters. If the Respondent does appear in court, there would be a full hearing. The judge will ask if the Respondent objects to the injunction. If he objects, the Judge will ask the Petitioner why the Petitioner needs the injunction. The Petitioner should start with the most recent incidents, or the incidents that led the Petitioner to file for this injunction. Please be very specific when describing the incidents. If there was physical contact, describe to the Judge what happened; also if there were any threats made to the Petitioner in any way, tell the Judge what that person said to the Petitioner by quoting them. If the Petitioner has any witnesses of the violence, the Petitioner can let the Judge know and the Respondent Can ask them questions. If the Respondenthas witnesses the Respondent can produce them at the hearing and the Petitioner can ask them questions about the situation. Witnesses, for either side, can only testify to what they have personally heard or seen. Also, if the Petitioner is trying to get an injunction because of stalking or harassment give information about where and when the Petitioner wasfollowed, how often, and over what period of time. Comment [MSOffice2]: We need to add something in here about temporary versus permanent and what the difference is. Deleted: Deleted: wants to Deleted: the Deleted: he threatened Deleted: as if the Petitioner is Deleted: other party Formatted: Underline Deleted: are Deleted: have been Deleted:

3 The Judge will then ask the Respondent his side of the story. The Petitioner will have an opportunity to speak again, after the Respondent rests. If the Petitioner has any documentation or evidence such as police reports the Petitioner may present those to the judge. Please remember not to interrupt the judge or the Respondent. If there is something the Petitioner wants to say, again the Petitioner will have the opportunity to speak. All attorneys whether pro se or not should address the court by raising their hand or saying Your Honor. TIMESHARING/CUSTODY AT INJUNCTION HEARINGS If aninjunction is granted and there is a child in common where the Petitioner both are the parents of a child, the judge may discuss concerns about timesharing and child support. The judge may ask if the Petitioner is willing to work with a mediator. If the Petitioner agrees the mediator will then discuss possible arrangements with both parties in order to reach an agreement. When referring to your child please use the term our child. Some judges are very strict with regards to terminology when discussing both parties children. It is very important to set boundaries during this time. Many batterers feel they have lost control and will use their time to discuss timesharing as a guise to harass the Petitioner or to discuss issues that are unrelated to the children. Moreover, without structure and a schedule both the Petitioner and the children suffer and the batterer continues to control the situation The Petitioner should create a specific timesharing schedule that outlines the days and times of the timesharing and where the children will be exchanged. Additionally, if the Petitioner has family out of the state that the Petitioner may seek to visit with the children the Petitioner would want to address that issue with the court. There are generally four different types of timesharing. One option is liberal exchange or curbside pickup. If the Petitioner feel safe with the Respondent coming to the house to pick up the children and the children are old enough to walk to the car alone with the Petitioner watching, this may be an option for the Petitioner. The judge can order no hostile contact for purposes of exchanging the children. Another option is to exchange at the children s school as much as possible. Another option is monitored exchange. This is where the Petitioner and the other parent agree on another person to help exchange your children. This can be a relative, friend, or designated facility. The custodial parent would drop the children off with the designated person and fifteen minutes later the other parent can pick them up. This way the parties do not have to have contact with one another. Try to have a few possible people in mind to be the third party. The other options are supervised timesharing or no contact. Usually the Petitioner will need to show issues of abuse or neglect by the other parent or in the presence of the children in order for the judge to issue this type of timesharing. The supervised timesharing is similar to the monitored exchange except that the designated person of facility supervises the visit for a few hours at a time. Deleted: The Petitioner can indicate the Petitioner have additional information by raising Deleted:. I suggest Deleted: t Deleted: ; Deleted: o Deleted: at Deleted: re have to be The Petitioner may request that the Respondent be ordered to have a mental health evaluation, a drug or alcohol evaluation or attend a batterer s intervention program. Please understand the Petitioner may make this request, but it is ultimately the judge s decision as to what is ordered. The court may also address temporary exclusive use and possession of the home; child support; and alimony (spousal support).

4 APPEALS If the Petitioner feels the judge s decision was incorrect, the Petitioner may appeal that decision, provided that certain procedural steps are taken. An appellate court does not, however, often reverse a trial judge s decision because the judge has broad discretion in divorce cases. Just because the Petitioner do not like the judge s decision is not a reason for an appeal. If the trial judge makes an error of law, or has abused his discretion, the decision may be reversed. Because an appeal must be filed within 30 days of rendition of the final judgment, the Petitioner needs to address this issue quickly with your attorney. VIOLATIONS OF THE DOMESTIC VIOLENCE INJUNCTION If the Respondent violates the provisions of the injunction, the Petitioner should contact his/her local law enforcement agency and file a report. He/She should also contact the clerk of the court s office for assistance in filing an Affidavit Alleging Violation of an Injunction. The affidavit will then be forwarded to the state attorney s office, to the designated judge, and to the appropriate law enforcement agency for investigation. The Petitioner can request a hearing on the violation, if he/she so chooses. EXTENSION OF THE DOMESTIC VIOLENCE INJUNCTION Injunctions may be extended on motion before they expire. The moving party must show a continuing fear of domestic violence that is reasonable based on the circumstances. DISSOLUTION OF DOMESTIC VIOLENCE INJUNCTION Permanent injunctions for protection against domestic violence are effective as specified in the injunction or until modified or dissolved. It is important for the parties to realize that they cannot by their actions (such as inviting the respondent to the residence) vacate the injunction. It must be dissolved by the court or it remains in effect. EFFECT OF SUBSEQUENT ORDER Any orders entered under a subsequent paternity or dissolution of marriage action supersede inconsistent provisions found in an injunction for protection against domestic violence. Provisions in the injunction relating to support, parental responsibility, timesharing, and exclusive use and possession of the marital residence must be reconsidered in obtaining a final judgment of paternity or dissolution of marriage. WHERE TO GET LEGAL HELP? A good place to begin is with your own lawyer who can give the Petitioner a quick review of your legal rights and advise the Petitioner how to proceed. If your lawyer does not handle divorce cases, the Petitioner will be referred to an attorney who does. If, however, your family lawyer has been retained by your spouse, then the lawyer cannot represent the Petitioner too. In fact, if the lawyer has been your family lawyer there may be a conflict of interest and the lawyer cannot represent either of the Petitioners. Do not attempt to consult with your spouse s attorney to receive legal advice. It is unethical for an attorney to represent both sides in a divorce and to give legal advice to both husband and wife.

5 HOW TO SELECT A LAWYER If the Petitioner does not have a lawyer, a lawyer referral service, usually operated by a local bar association, can put the Petitioner in touch with a lawyer who handles such cases. The lawyers associated with the lawyer referral service have an agreement to charge a very small fee for the first conference. For just a few dollars, the Petitioner can discuss your rights and obligations and determine if the Petitioner are proceeding in the right direction. Many areas in Florida have lawyer referral services listed under Attorney or Information and Referral Services in the yellow pages of the telephone book. If the Petitioner do not have a lawyer referral service in your city, The Florida Bar s Statewide Lawyer Referral Service can locate a lawyer for the Petitioner. The Petitioner can call the statewide service, toll-free, at or the Petitioner can view the Attorney Search section on The Florida Bar Family Law Section s homepage at In Florida, lawyers who specialize in family law can become board certified if they meet certain criteria and pass a comprehensive test in the area. To maintain certification a lawyer must take certain continuing legal education courses on a regular basis. If the Petitioner are looking for an attorney to represent the Petitioner in a domestic violence injunction or any other legal matter, The Florida Bar has developed another consumer pamphlet, How to Find a Lawyer in Florida, which may be helpful. See the back of this booklet for instructions on ordering it and/or other consumer pamphlets. IMPORTANT TELEPHONE NUMBERS The Florida Bar Statewide Lawyer Referral Service: The Florida Coalition Against Domestic Violence: The Florida Council Against Sexual Violence: RAPE (7273) Florida Department of Children and Families Abuse Hotline: Florida Department of Children and Families Domestic Violence Program: The material in this pamphlet represents general information on the laws in Florida and should not be deemed legal advice. All statutory references are to the 2010 version of the Florida Statutes. Since the law is continually changing, some provisions in this pamphlet may be out of date. It is always best to consult an attorney about your legal rights and responsibilities regarding your particular case. [Revised: /11]