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Restraining Orders in Florida: Uses and Abuses

Posted by Robert E. Heyman | Nov 25, 2020 | 0 Comments

Florida law provides that a person who has been the victim of domestic violence or is in "immediate danger" of becoming a victim of domestic violence can obtain an injunction to keep the threatening person away from the victim, whether at home, work or in public. Injunctions typically prohibit contact of any kind, either direct or indirect. A person is able to obtain a temporary injunction by filing an application with the court, accompanied by an affidavit setting out the facts which support the need for protection. Most requests for temporary injunctions are granted for a period of usually 15 days. The person served is given a court date at which the judge will decide whether to make the injunction permanent or not.

At the hearing, both sides have the opportunity to testify and present evidence and witnesses on their behalf, following which the judge must decide whether there is sufficient evidence to support the injunction, and if so, determine the length of the injunction and any conditions to be placed upon the accused, such as paying child support or attending counseling.

There is no question that such injunctions are necessary in situations where the abuse, and the danger for future abuse is apparent. The problem arises when the injunction process is used improperly or as a " weapon" to gain leverage in a pending divorce and/or child custody dispute. I have handled cases where a spouse calls the police and reports that a battery has been committed against them - a situation under the current "arrest preferred" policy followed by most police departments which most often results in the arrest of the accused batterer. Since bond cannot be granted to someone accused of spouse battery until they appear before a judge - sometimes as much as 12 to 24 hours after arrest, the spouse alleging battery has sufficient time to obtain a temporary injunction which thereafter prohibits access to the accused to their home. The accused must also divest him or herself of any firearms in their possession.

If you feel you have been unjustly accused of domestic violence, the absolute worst thing you can do is to ignore the temporary injunction and not appear for the final hearing. It is critical that you seek experienced counsel who can objectively evaluate the available evidence and determine whether there are any defects in the petition and what evidence is available to rebut the allegations of abuse. Please contact the Heyman Law Firm should you have any questions.

About the Author

Robert E. Heyman

Bio Robert E. Heyman was born in Providence, RI, and grew up in Barrington, RI. He graduated from Barrington High School in 1974, and earned the rank of Eagle Scout. Following high school graduation, Mr. Heyman attended Northfield-Mt. Hermon Academy in Northfield, MA and thereafter attended co...

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