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DOMESTIC VIOLENCE: CAN YOU BE PROTECTED?

One of the most difficult events during a relationship inside or outside of a marriage is the occurrence of domestic violence. Clearly, no one is permitted to seriously threaten much less physically attack a spouse or significant other and such attacks can often have direct criminal implications. Indeed, Florida’s domestic violence statute Chapter 741.28, Florida Statutes defines the statutorily prohibited activities by reference to the criminal code. These include assault, battery, sexual battery, stalking, false imprisonment “or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.”  To file a domestic violence action, you must be a spouse, former spouse, a person who is related by “blood or marriage” to the perpetrator, a person presently living or who has in the past lived together with the perpetrator “as if a family” (i.e., not a tenant), or a person who has a child with the perpetrator whether living together or not.

Under the statues, if a person is “either a victim of domestic violence … or has reasonable cause to believe he or she is in imminent danger of becoming a victim …” that person can file a Petition in the Circuit Court for protection against domestic violence.  (Under the statute, the case can be filed in the Circuit where either party lives or where the domestic violence incident occurred.) Once filed, a judge will review the Petition and, if the Petition sets out the story of the domestic violence sufficient to meet the statutory criteria, the judge will grant an Ex Parte Temporary Injunction Against Domestic Violence. The Temporary Injunction is good for fifteen days when a full hearing will be held. The alleged perpetrator will be served with the Temporary Injunction and  a Notice of Hearing so that he/she can attend and present any defenses. If the court grants a Permanent Injunction after the hearing, that will be in effect until it is modified or dissolved after a subsequent hearing.

The relief the court can grant in a Permanent Injunction entered under the statutes is very comprehensive. The injunction will bar any further acts of domestic violence; can award the Petitioner exclusive use of the jointly-shared residence, or bar the perpetrator from entering the Petitioner’s  residence; can order the perpetrator to surrender any of his/her firearms; can grant the Petitioner all of the time with the parties’ minor child, if any; can establish an amount for child support; can order the  perpetrator to enter a batterer’s intervention program, therapy or other domestic violence prevention program at the expense of the  perpetrator; and any other relief the court feels is “necessary for the protection of a victim of domestic violence.”

The key to a successful case for protection against domestic violence is to avoid a “he said/she said” scenario that places the court in a ‘coin-toss’ dilemma.  First, ensure that the alleged domestic violence act meets all of the above statutory criteria. Second, document the alleged incident. Take pictures right away while the bruises, etc., are visible. File a police report and secure the contact information for any witnesses to the incident. Third, finally, do not delay in filing your Petition for Protection Against Domestic Violence. The Clerks of Court in many Circuits can provide assistance in preparing your Petition or any competent family law attorney can handle the case for you from start to finish.

 

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