Obtaining an Injunction for Protection against Domestic Violence in Florida
Attorneys at Icard-Merrill discuss the statutes governing domestic violence and the factors weighed by courts when evaluating a petition for an injunction
In Florida, there is a civil remedy available for victims of domestic violence to protect themselves from their abusers. The legal analysis of this issue must begin with a definition of domestic violence. In Florida, "domestic violence" is defined in Florida Statutes §741.28 as "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 family or household member."
This definition is specifically applicable to spouses, former spouses, relatives (by blood or by marriage), any parties who are living together or have lived together, or parents of a child or children regardless of whether the parents have ever been married or lived together. If the parties are not in one of those situations, there are other causes of action available to prevent repeat violence, dating violence, or sexual violence.
An Injunction for Protection against Domestic Violence ("IFP") is the civil remedy for the victim of domestic violence in Florida. Florida Statutes §741.30 creates a legal cause of action for the IFP to take effect. The process explained below was intended by the Legislature to work as quickly as practicable – a petitioner for an injunction is not required to have an attorney for example.
Continue reading for an outline of each applicable part of this statute, which explains the process and criteria for obtaining an injunction against a spouse, parent or other household member.
- Florida Statutes §741.30(1) establishes the parameters for who may file for an IFP.
First, any person who is a family or household member may seek a petition for injunction; there is no requirement that the petitioner must be a spouse. The petitioner must either be the victim of domestic violence or has reasonable cause to believe they are in imminent danger of becoming the victim of any act of domestic violence.
- Florida Statutes §741.30(2) requires county clerk official to assist a domestic violence victim (petitioner) complete the required paperwork.
- Third (F.S §741.30(3), the court must consider the allegations within the petition and issue a temporary injunction if it decides that an immediate and present danger of domestic violence exists.
- Fourth, Florida Statutes §741.30(4) requires the court to hold a hearing on a petition for IFP "at the earliest possible time."
- Florida Statutes §741.30(6)(b) sets out ten required factors that the court must consider before reaching a decision.
The following factors are weighed by the court before issuing either a temporary IFP or a permanent IFP.
- the history between the petitioner and the respondent
- whether the respondent has attempted to harm the petitioner or family members or individuals closely associated with the petitioner
- whether the respondent has threatened to conceal, kidnap, or harm the petitioner's child or children
- whether the respondent has intentionally injured or killed a family pet
- whether the respondent has used, or has threatened to use, against the petitioner any weapons such as guns or knives
- whether the respondent has physically restrained the petitioner from leaving the home and/or calling law enforcement
- whether the respondent has a criminal history involving violence or the threat of violence
- whether a prior order of protection exists
- whether the respondent has destroyed personal property belonging to the petitioner;
- whether the respondent engaged in any other behavior that leads the petitioner to have a reasonable belief that he/she is in imminent danger of becoming a victim of domestic violence.
- If the petition is granted, there are a number of remedies that the court has the authority to grant in order to ensure the protection of a victim of domestic violence.
These possible remedies include:
- restraining the respondent from committing any acts of domestic violence
- restraining the respondent from accessing the petitioner's home (i.e. award petiotioner exclusive use of shared dwelling, or bar respondent from petitioner's residence),
- providing the petitioner with sole time-sharing of the parties' minor child in a temporary parenting plan
- establishing temporary support for the parties' minor child or children and/or for the petitioner
- ordering the respondent to participate in a treatment program to be paid for by the respondent; and/or referring a petitioner to a certified domestic violence center.
If you or someone you know has been the victim of domestic violence, please seek assistance from your local county clerk of court (Sarasota, Manatee, Charlotte) to file an Injunction for Protection against Domestic Violence.
Whatever you do, do NOT delay seeking help in an abusive situation – if you believe you are in imminent danger, call 911 immediately!!
The domestic violence lawyers at Icard, Merrill, Cullis, Timm, Furen & Ginsburg are available to assist you with this process, including attending the hearing with you. Please feel free to contact our offices at (941) 366-8100 to discuss your individual situation today.