Criminal Domestic Violence and Civil Domestic Violence Injunctions
Domestic Violence issues can take several different legal forms. A person can file a petition for an injunction which falls under civil. If someone calls the police and the accused is arrested, that would be criminal. The incident can also be handled in both criminal and civil courts. Note: A violation of a civil injunction is a criminal offense!
Criminal Domestic Violence Cases
Criminal Domestic Violence cases are usually misdemeanors (1 year of jail or less), however, if the allegations are serious, the case can be charged as a felony. Most of the time when a person is arrested for domestic violence, they will not be given a bond until they see a judge. This usually occurs within 24 hours. The Judge will also decide the conditions of release, including whether or not the person can have contact with the alleged victim, return to the home, or have contact with the children. Having an attorney present at first appearance can be very helpful in these preliminary matters and for later on in the case.
Domestic violence cases in Orange County are usually heard in a specific domestic violence division. In other counties, they may be heard in front of the regular trial division. Domestic violence cases can be enhanced if there are prior offenses or if the allegations are more serious.
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Types of Violence
There are different types of injunctions authorized by Florida law and the type depends on the relationship between the aggressor and the victim.
- Domestic (Family Violence) – Fla. Stat. 741.30; spouse, ex-spouse, blood elates, or anyone else who lives or has lived together in the same dwelling as a family unity, or any persons who are parents of a common child
- Repeat Violence – Fla. Stat. 784.046; no familial relationship is required and anyone including a minor can file. Requirements include one incident of stalking or 2 incidents of an assault, battery or sexual battery, one of which must have occurred within the last 6 months, and when it appears to the court that an immediate and present danger of repeat violence exists.
- Stalking – Fla. Stat. 784.048; no familial relationship required; see statute for full definition of stalking.
- Dating Violence – Fla. Stat. 784.046; Must show a dating relationship exists and that an immediate and present danger exists for the victim
- Sexual Violence – Fla. Stat. 784.046; No familial relationship required; this requires an act as defined in the statute and the victim must have reported it to law enforcement the perpetrator was sentenced in criminal court for the crime.
- Child – Fla. Statutes Chapter 39 and Fla. Stat. 827; Any person under age 18 who suffers at the hands of a parent, adult household member, or any other person responsible for the child’s welfare.
- Elderly – Fla. Stat. 825.102 & Fla. Stat. 827; The victim must be a family or household member at least 60 years of age or older.
- Pet – Fla. Stat. 784.048; Must show evidence that an alleged abuser intentionally injured or killed a family pet
How To Get Protection If You Are A Victim
In most cases, an alleged victim will attempt to get an injunction against the accused. In order to do this, a petition must be filed. The Court must have jurisdiction over the case and the petitioner must have standing to file for the injunction. The petition can be filed where the petitioner currently lives, where the respondent (accused) lives, or where the violence occurred. The alleged acts must have occurred in the State of Florida.
Defending Against False Allegations
There are several ways to defend against a pending injunction. You can contest the Court’s jurisdiction to hear the case, contest the petitioner’s standing to bring forth the injunction petition, and you can contest the allegations themselves at an evidentiary hearing. The allegations in the petition must be sworn to and the petitioner can be subject to prosecution for perjury.
Hearing On The Petition For Injunction
If the case goes to a hearing, both sides can present evidence and arguments though time is limited for this. The Courts have many cases to hear and often times will only give each side a few minutes to present their case. At the hearing, the Court can only hear facts related to what is actually alleged in the petition. The Petitioner has the burden to prove the allegations and they will go first at the hearing. The Respondent can then put evidence or question the accuser.
The hearing is set within 15 days of filing the petition; however, the hearing can be continued if good cause is shown. The Hearing will be recorded and can be dismissed if the petitioner does not show. Due process applies to this hearing so both sides have an opportunity to be heard and may present evidence.
Though it is not required, it is a good idea to have an attorney present at this hearing whether you are the petitioner or the respondent. An attorney experienced in handling injunctions will know what evidence the Judge will be looking for to grant or deny a petition.
Amanda Sampaio has handled several injunction cases.
CALL (321) 800-3400