Domestic Violence Is A Serious Matter
Domestic Violence: A Primer on the Process and Common Mistakes
Seeking an injunction to protect you from domestic violence or receiving a petition accusing you of domestic violence is a serious matter. But, before we get started, you should know about a contest I'll be running it each my columns that can win money for your favorite charity:
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Seeking an injunction to protect you from domestic violence or receiving a petition accusing you of domesticviolence is a serious matter. If you look at most counties’ reporting statistics, domestic violence cases are one of the most common cases. I guess that is why this article is so long.
You need to know the law, and I believe you really do need the assistance of counsel to properly protect yourself and, if appropriate, your children. Additionally, if you have been accused of domestic violence wrongly, you need to know what the court will consider when it decides whether it will permanently grant the injunction.
I have to lay the framework to get to the most important part of the article: common mistakes that can ruin your case. An experienced domestic violence attorney can go a long way. I know that some courts show this video or this video at the courthouse to provide information to you.
What is Domestic Violence?
Domestic Violence is defined as “any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resultingin physical injury or death of one family or household member by another family or household member.” Fla.Stat. § 741.28(2). A domestic violence proceeding is a civil remedy enforceable by criminal contempt. In other words, if you obtain an injunction, there may or not be a parallel criminal action filed. But it is a wholly separate action. There are also repeat violence injunctions, sexual violence injunctions, and dating violence injunctions.
How do I acquire an Injunction Against Domestic Violence?
In order to obtain a Domestic Violence Injunction in Florida, a party must prove they are a victim of domesticviolence or are in imminent fear of becoming a victim. Florida courts have a hard time defining and classifying what is an imminent fear. When determining what is a reasonable fear of imminent danger, Florida courts consider the allegations made along with both parties' behavior throughout the relationship and the couple’shistory in its entirety.
Section 741.30, Florida Statutes, requires the court to consider certain factors in determining whether the Petitioner has a reasonable fear of imminent danger. For example, the court will consider: the history between the parties such as threats, stalking, and previous abuse; threats to conceal harm, or kidnap the petitioner’s children; use or threats of use of weapons; criminal history; and harm to pets and property.
It is not enough to state you are afraid of the individual or the opposing party made certain threats. A verbal threat without more does not constitute an assault. You must be able to demonstrate the individual committed an overt act that shows he or she had the ability to carry out that threat.
Where do I start and when does it end?
Obviously a domestic violence case begins when an event of domestic violence occurs. If you must leave your residence immediately for safety, go to a domestic violence shelter. I found this great resource that covers the entire state.
Your next step is to go to the closest courthouse in your county and ask the clerk of court for a domestic violence packet. There likely are variations from county to county, but every courthouse I have been to has the packet readily available. I can assure you that there we will be many different forms you need to fill out depending on whether you are filing on your own behalf and/or if you are filing on behalf of minor children. Almost every time a person fills out the paperwork before the person can set an appointment with an attorney because of timing issues. Don’t be shy, ask the clerk questions.
In every courthouse I have been in, the judge will make a determination that day on what will happen next. There are three options:
- The petition is denied and the judge will not allow you to schedule a court date. When this happens, forwhatever reason, you have to essentially start over.
- The petition is denied, but the judge will allow you to present your case in open court. In essence, thejudge is saying that your allegations do not rise to the level of providing protection immediately, but you can stillhave a trial on your case at a later date. The sheriff will then serve the paperwork on the respondent.
- The petition is granted on a temporary basis. The judge has found your allegations rise to the level ofissuing a temporary order protecting you from the respondent immediately and without notice to the other party. The court will set a hearing within fifteen (15) days from the date of entry. You will still have to present your case and evidence for a permanent injunction to be entered. The sheriff will then serve the paperwork on therespondent, but the injunction is enforceable immediately.
After trial, if you win, a permanent injunction will be entered for an amount of time the judge finds appropriate. I have seen some for as short as six months and others for three years. One year is average. If the respondent violates the injunction (temporary or permanent) by contacting you, you can have the respondent arrested, file a motion for contempt in the domestic violence court, or both. Either party can ask the court to modify or dissolve the injunction before it expires. The petitioner can ask the court to extend the injunction if there is good cause such as the respondent’s violation of the injunction.
What are some common mistakes?
I have personally observed all of these mistakes (or made them early on in my domestic violence trial career):
- You fail to actually bring witnesses to court. This one is very common. Too many times a party (whether petitioner or respondent) says, “I could bring in a hundred witnesses who saw or heard what happened.” Remember, your court date is your court date, your trial, your last chance. Don’t tell the judge what you could do, do it. If there are some witnesses that you need that will only come if they are forced, then ask the clerk about issuing a subpoena on them. This is usually requiredfor police officers and child protective services personnel.
- You actually bring 100 witnesses to court. The one thing that most people are surprised about when they go to a domestic violence hearing is the numberof other cases that are in the courtroom. Most of the time, the judge will set a domestic violence return hearing(trial) for 9:00 am. There may be anywhere from fifteen to fifty people in the courtroom. The judge essentially has allotted from 9:00am until 12:00pm to hear every case. While you are entitled to a “full evidentiary” hearing, this does not mean you are entitled to a three-day trial. Pick and choose your most important witnesses.
- Save your documentary evidence. If you are injured, take pictures. If you have pictures on your phone, save them. If there are threats on text-message, lock the text messages so they don’t expire after fourteen days. Don’t ask the judge to log into Facebook at the hearing; rather, print the Facebook threats out for the judge. If you made a police report, get the police report and the police officer. Do not say, “I could show you xyz picture and you would see.” Show the picture on that day. Again, this is your trial.
- Do not get mad at the judge. I never understand why unrepresented parties try to take control of a courtroom and talk over the judge. A judge that hears domestic violence injunctions probably hears these cases at least once a week, every week, every year. They have heard hundreds if not thousands of cases. It is their courtroom and they will (and absolutely should) run their courtroom how they want. You will want to tell your whole story, and the judge will likely only want to hear part of the story. Just answer the judge’s questions with professionalism and honesty. Do not talk when anyone else is talking. Remember, whether you are the petitioner or respondent, you are in domestic violence court. I don’t know how many different angry birds games there are for the android, but I know that an angry bird in court will lose. If you cannot keep your anger down, how far do you think your case will progress?
- You are in a court of law. Respect the courtroom: Judges are elected officials who were elected by your community. There are bailiffs with guns, handcuffs, and so forth in the courtroom.
A few best practices for when you are in court
Wear something professional, please. No jeans, no shorts, not-shirts, no hats, no sunglasses. Don’t wear clothes that would be appropriate for a night out in Ybor City. Imagine you are going on a job interview with your religious leader or at a bank. You don’t have to have a suitand tie, but nice pants and a polo, or even better a button down shirt, will go a long way. For women, a niceprofessional dress suite or slacks with a conservative blouse, or a shell under a suit jacket with flats or normalheals. For men and women, if you wear a button-up shirt you should button it up.
Say, “Your Honor” rather than Judge or Sir or Ma’am. Say “Yes” rather than Yea or Uh Huh. Sit up straight,don’t roll your eyes, and keep your non-verbal communications and facial expressions to a minimum.
Turn off your phone. Seriously, turn it off.
I am sure your attorney will tell you this, but if you have an attorney, don’t talk to your attorney or poke him orher or kick him or her while you are in court. If your attorney wants to talk to you or wants you to talk, your attorney will tell you. By the time you break this rule, it is too late because now your attorney will have to tellyou to stop, will miss a critical part of the case, or have a bruised shin.
Make sure you are sober. I know this sounds funny, but if you ever have to go to a domestic violence hearing,you will probably be able to pick out at least one person in that courtroom that is under the influence of something. Don’t be that person.
If you are trying to protect your children, make sure you file on their behalf. “Mary Smith individually ando/b/o Mary Smith Junior.”
Do not violate the injunction regardless of whether you are the petitioner or respondent. Let me repeat, DO NOT violate the injunction. If you are a petitioner, do not call the respondent, email therespondent, or get back into a relationship with the respondent unless the injunction specifically allows you to.Your long-term ability to enforce the injunction may be at risk. If you are a respondent, if you violate, you verywell can be arrested. If you are a respondent, you can still violate the injunction of the petitioner contacts you.
Keep a copy of your injunction with you always. Keep a copy in your house, in your car, in your purse for those that carry purses, at work, or anywhere else. For petitioners, if you need to call the police to enforce it, you need it with you. For respondents, if there are certainplaces you can be or communications you can make, you need it to show the police if they knock on your door.
If a temporary injunction or permanent injunction is issued against you, turn in your firearms immediately.
As a final thought, domestic violence injunctions are a critical component to getting protection for victimsof actual domestic violence. It should not be used as a quick way to get an advantage in a break-up, custody dispute, or divorce. I support a strong domestic violence injunction law. I also have seen many abuses of domestic violence laws. Unlike perhaps a traffic ticket or a breach of contract case, whether you prevail or nothas serious consequences. A petitioner that loses may be subject to continued domestic violence. A wrongly accused respondent can lose constitutional rights to arms, contact with children, a place to live, and even be subject to criminal contempt if the injunction is violated.