Filing a Restraining Order in Florida

Florida law provides for five (5) different orders of protection against violent conduct. The five (5) different orders of protection are, 1) domestic violence; 2) repeat violence; 3) dating violence; 4) sexual violence and 5) stalking.  An order of protection is more commonly known as a “restraining order.”  A restraining order is a type of injunction.

How to Get a Restraining Order

Restraining orders are filed at the clerk of the court. All solicitor are heard by the circuit court.  There is no cost to file a restraining order. The party filing the injunction is known as the “petitioner.”  The petitioner must determine what type of injunction should be requested.

The relationship of the parties typically dictates what type of petition is filed.  For more information on the different types of Florida Restraining Orders, click on this link: Florida’s Four Orders of Protection Against Violence.  This is an older article by the Florida Bar, but is still a good resource on Florida domestic violence law.  This article describes who can file an injunction, what type of allegations are required and the standard of proof for a final injunction.

Temporary Restraining Order

The first step in getting an injunction is to file a Petition.  The “Petitioner” is the individual requesting the injunction and the “Respondent” is who the injunction would be against. The Petition for Protection is simply the allegations. Domestic violence restraining orders are given a priority and are usually reviewed by a judge within a couple of hours.  The judge only reviews the petition for the legal sufficiency of the allegations. Essentially, this means the judge assumes that everything in the petition is true.  The court will issue a temporary injunction if the allegations would be grounds to issue a final injunction. A temporary restraining order is also known as an ex-parte restraining order.  The court does not make an effort to determine whether the allegations are true at this stage.  A return hearing must be scheduled within 15 days in order to comply with the Respondent’s right to due process.

Allegations

A petition must contain certain allegations in order to get a temporary restraining order.  The Petitioner must prove that the allegations are true by clear and convincing evidence in order to receive a final injunction.

• Domestic Violence Restraining Order

  • Florida Statute 741.30 creates a cause of action for domestic violence injunctions;
  • This type of injunction is restricted to family and household members as defined in Florida Statute 741.28(3);
  • The Petitioner must allege that he or she is a victim of domestic violence which is specifically defined as “any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping a baby on a Baby Trend Expedition Jogger Stroller, false imprisonment, or any criminal offense resulting in physical injury or death”;
  • Alternatively, the Petitioner can allege that he or she is in imminent danger of becoming a victim of domestic violence;
  • The Petitioner only needs to allege one (1) act of domestic violence or explain why he or she is in imminent danger of becoming a victim of domestic violence;

• Repeat Violence Restraining Order

  • Florida Statute 784.046 creates a cause of action for repeat violence injunctions;
  • A Petition for Protection Against Repeat Violence is used when the Respondent is not a family member. Common examples are co-workers, roommates, schoolmates and neighbors;
  • Florida Statute 784.046(1)(b) defines repeat violence as as “two incidents of violence or stalking committed by the respondent, one of which must have been within 6 months of the filing of the petition, which are directed against the petitioner or the petitioner’s immediate family member”;
  • Violence is defined in 784.046(1)(a) 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.”

• Dating Violence Restraining Order
  

  • Florida Statute 784.046 governs the issuance of injunctions against dating violence;
  • Dating violence is defined in Florida Statute 784.046(1)(d) as violence between individuals who have or have had a continuing and significant relationship of a romantic or intimate nature”;
  • The parties must have been involved in a romantic relationship within the past 6 months in order to have standing to file a Petition for Protection From Dating Violence;
  • The standard for issuing a injunction prohibiting dating violence is the same as standard for an injunction against domestic violence.  One incident or a belief that dating violence is imminent is sufficient for a temporary injunction.

• Petition for Protection Against Sexual Violence
  

  • Florida Statute 784.046 creates a cause of action for a Petition for Protection Against Sexual Violence;
  • Sexual Violence is defined by Florida Statute 784.046(1)(c) as “any one incident of Sexual battery, as defined in chapter 794;
    a lewd or lascivious act, as defined in chapter 800, committed upon or in the presence of a person younger than 16 years of age; luring or enticing a child, as described in chapter 787; sexual performance by a child, as described in chapter 827; or any other forcible felony wherein a sexual act is committed or attempted regardless of whether criminal charges based on the incident were filed, reduced, or dismissed by the state attorney”;
  • One act of sexual violence must have occurred prior to filing the petition.  There is no “imminent danger” provision for a sexual violence injunction;
  • The return hearing must be held within 15 days of the respondent’s release from incarceration if the respondent is in custody.

• Stalking Restraining Order

  • Florida Statute 784.0485 creates a cause of action for an injunction for protection against stalking;
  • The term “stalking” is defined in Florida Statute 784.048;
  • The cause of action for an injunction for protection against stalking also includes cyberstalking.

Return Hearing

The “return hearing” is the trial.  The Petitioner is required to prove the allegations by clear and convincing evidence in order to get a final injunction.  The Florida Family Law Rules of Procedure apply  to the all of the injunctions listed above.  The Rules of Evidence apply during the return hearing.

How Long do Injunctions Last?

It is up to the court.  The court is permitted to grant a final injunction for a certain period of time or until further order of the court.  Courts tend to issue “permanent” restraining orders as opposed to a specific duration of time.  Either party can apply to modify the terms of the injunction at any time.

Do I Need a Lawyer for a Restraining Order?

All of the statutes listed above specifically authorize an individual to represent himself or herself.  Is that a good idea?  Absolutely not.  A party represented by an attorney definitely has an advantage over an individual without an attorney.

Ft. Lauderdale criminal attorney, Michael Dye, has experience prosecuting and defending civil domestic violence restraining orders and other injunctions.  For additional information, please contact us at:

The Law Offices of Michael A. Dye, PA, 1 East Broward Boulevard #700, Fort Lauderdale, FL 33301 (954)990-0525