Video answers from Jacksonville family law attorney A. James Mullaney about domestic violence issues in Florida family law.
What is Domestic Violence in Florida?
Transcript
Domestic violence is one or more specific actions committed by someone in a specific group of people. Domestic violence is defined to include any criminal offense that results in physical injury or death to one family or household member by another family or household member. The criminal offenses include, but are not limited to, assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, and false imprisonment. Each of those offenses has its own definition under Florida law. Also, the Florida statutes define the term "family or household member" to mean spouses, former spouses, persons related by blood or marriage, persons who are presently living together as if a family or persons who have lived together in the past as if a family and persons who are parents of a child together regardless of whether they have been married or live together. With the exception of persons who have a child in common, the family or household members must be currently residing together or have in the past resided together in the same single dwelling unit. So domestic violence occurs when a family or household member commits one or more of the actions I previously mentioned. For example, if you were to come over to my house and slap me, that would not be domestic violence since we are not family or household members. If we were cousins or siblings, there would still be no domestic violence unless we were living together or had lived together in the past. Also, violence among roommates (who are not living together as a family) is not domestic violence, but it may qualify as repeat violence - which involves another type of order of protection.
Who can get a Domestic Violence Injunction?
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If you are in at least one of the following three categories of people, you can get an Order to Protection Against Domestic Violence. 1. Those who have been the victim of domestic violence, 2. Those that are in imminent danger of becoming the victim of domestic violence, and 3. Those that are the parent or legal guardian of any minor child that you live with and are seeking the order on their behalf. Category 2 is really the most important because it allows you to get an Order of Protection even if you have not yet been the victim of domestic violence. In essence, the abuser does not get to abuse you once before you can get the order. If you are in one or more of these categories, whether or not you can get the Order depends on the facts of your case. After you file your petition, it will be read by a judge, usually within a day. At this point, the judge will assume that everything you wrote is true. Based on what you write in the petition, the judge will enter a temporary order if it appears that an immediate and present danger of domestic violence exists. If your temporary order is entered, a hearing will be scheduled within 15 days. The hearing date can be delayed and the temporary order extended if the other person has not been notified of the hearing. At the final hearing, you will have to prove the allegations in your petition by a preponderance of the evidence. If it appears to the judge that you are the victim of domestic violence or if you have reasonable cause to believe that you are in imminent danger of becoming a victim of domestic violence, the court will enter a permanent order of protection. In the order of protection, the judge can address the following issues: 1. Child support, 2. Time sharing, 3. That the other side have no contact with you, 4. That the other side undergo a substance abuse and/or mental health evaluation, 5. That the other side attend a batterers intervention program, 6. That the other side stay away from your school, place of employment, and other places that you or your family members are known to frequent, 7. Surrender any firearms and ammunition.
What is Repeat Violence in Florida?
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Repeat Violence, in the context of obtaining an Order of Protection Against Repeat Violence, is defined as two incidents of violence or stalking committed by another person, which are directed against you or your immediate family. One of these two incidents of violence or stalking must have occurred within 6 months before the filing of the petition for an order of protection. In this context, violence is defined as any criminal offense resulting in physical injury or death and includes, but is not limited to, assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, and false imprisonment. Each of these criminal offenses has a separate definition under Florida law.
Who can get a Repeat Violence Injunction?
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If you are in at least one of the following two categories of people, you can get an Order to Protection Against Repeat Violence. The fist category is those who have been the victim of repeat violence. This requirement is different than for a domestic violence injunction. For domestic violence, you can get that injunction if you are only in fear of becoming the victim of domestic violence. For a repeat violence injunction, you already have to be a victim of the violence. The second category are those people that are the parent or legal guardian of any minor child that they live with and are seeking the order on their behalf. In order for a parent or legal guardian to file on behalf of a minor child against someone who IS NOT the minor child's parent, stepparent, or legal guardian, the minor child must be living with the person filing for the injunction and the person filing for the injunction must have reasonable cause to believe that the child is the victim of repeat violence. In order for a parent or legal guardian to file on behalf of a minor child against the minor child's parent, stepparent, or legal guardian, the minor child must be living with the person filing for the injunction and the person filing for the injunction must have been an eyewitness to, or have direct physical evidence or affidavits from eyewitnesses of, the specific facts and circumstances of the violence.
What goes into a Repeat Violence injunction?
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If a judge grants a temporary order of protection against repeat violence, there must be a hearing within 15 days. This period can be extended for good cause, such as the failure to serve the alleged abuser. In a temporary order, the judge can order the following: 1. That the respondent commit no acts of violence, 2. That the respondent have no contact with the petitioner, 3. That the respondent not go within 100 feet of the petitioner car, 4. That the respondent no go within 500 feet of the petitioners current residence, any future residence, current or future employer, current or future school, and any place frequented by the petitioner or the petitioners children. 5. That the respondent not possess fire arms or ammunition and surrender any they do have to the sheriff's office. The judge also has the authority to order other measures deemed necessary to protect the petitioner. If the judge finds that an immediate and present danger exists, the court can enter a final injunction that has a limited duration or will be in place until further order of the court.