Restraining Order Lawyer
A restraining order is when a court orders an individual to stay away from another person. It is also known as an injunction. Victims of domestic violence or who have claimed physical abuse, feel threatened, or feel unsafe have a legal right to protective action against the alleged offender. Restraining orders are often used in domestic violence, harassment, stalking, or neighbor disputes.
A restraining order is a type of injunction. Restraining orders and injunctions are interchangeable terms, both serving as a preventative measure to protect the alleged victim from future harm.
The person seeking protection is the “Petitioner,” and they will file a petition to seek protection from the “Respondent.”
A restraining order prohibits an individual named in the order (Respondent) from coming within a certain distance from the victim’s home, car, school, or job. In addition, the named individual should also refrain from contacting the victim in any way whatsoever.
Restraining orders and injunctions issued in Florida are enforceable in all states.
There are six types of restraining orders or injunctions in Florida:
- Dating violence restraining order/injunction
- Domestic violence restraining order/injunction
- Repeat violence restraining order/injunction
- Sexual violence restraining order/injunction
- Stalking restraining order/injunction
- The exploitation of a vulnerable adult restraining order/injunction
Domestic Violence: The Numbers in Florida
Domestic violence is a pattern of abusive behaviors usually inflicted on a victim by an abuser. The abuser usually uses abuse to maintain power or control over an intimate partner, an ex, or a family member.
Here are some statistics on Domestic violence in Florida from 2020:
- According to the Florida Department of Children and Families, 106,515 domestic violence crimes were reported to Florida law enforcement agencies.
- 63,217 of those domestic violence crimes resulted in arrests
- Domestic violence advocates reportedly made 150,799 tailored safety plans.
- Agencies and advocates provided 200,00 hours of advocacy and counseling services to abuse victims.
- 72,321 individuals made domestic violence hotline calls seeking emergency services, information, and safety planning assistance.
While domestic violence is not the only reason Petitioners seek injunctions in Florida, it’s the most common reason.
Pinellas County, in particular, consistently overrepresents domestic violence cases in Florida. From 2001-2020, Pinellas County has consistently had a higher rate of Domestic Violence Reports than Florida’s average.
According to County Clerk records, from January 2021 to August 2022, Pinellas County documented 500 domestic injunction cases. Here is a breakdown of the injunctions by type:
- 156 were related to stalking
- 278 were related to domestic violence
- 41 were related to repeat violence
- 25 were related to dating violence
Florida ranks number 21, after Alabama, in the US for domestic violence rates against women, at 37.4 %, slightly higher than the national average of 37.2%.
What Is the Difference Between an Injunction and a Restraining Order?
Injunctions and restraining orders are the same; both serve to prevent a person from committing a particular act. They are court orders that block the defendant from committing violence or violent acts on another individual.
Temporary Restraining Orders Are Short-Term
If a person feels threatened or at risk, they may seek protection through a restraining order. Reasons for why someone might file a restraining request include:
- Domestic violence
- Cyber-stalking or harassment
The person requesting protection will start with an application for a restraining order at the clerk’s office. Then, if the judge believes there is a danger, they will issue a temporary restraining order against the Respondent.
Temporary restraining orders are short-term because the judge has only heard one side of the story. Therefore, this is an “ex parte” restraining order. The court will issue the restraining order until the judge sets a court date for a full hearing. Then, the judge will decide whether to make the restraining order a final injunction or dismiss it.
Final Injunctions Are Longer
At this final injunction hearing, the judge will either grant or deny the application for the injunction. If the judge grants the injunction, they will specify a time limit and any other conditions the Respondent must complete. These conditions usually are anger management or drug/alcohol counseling. The time limit can range anywhere from months to permanent.
If the Respondent fails to appear in court, the temporary injunction, or restraining order, will be granted. The judge will dismiss the case if the Petitioner fails to appear in court.
What Requirements Must Be Met to File a Restraining Order in Florida?
A Petitioner seeking preliminary injunctive relief (restraining order) must satisfy four factors:
- They will succeed on the merits of their claims
- They are likely to suffer irreparable harm without a restraining order
- The balance of equities between the parties supports a restraining order
- The restraining order is in the public interest
Courts are more likely to scrutinize these four factors heavily when considering a permanent injunction over a temporary restraining order.
Understanding the Different Types of Restraining Orders in Florida
There are six types of injunctions, or restraining orders, in Florida: domestic violence, sexual violence, repeat violence, dating violence, stalking, and exploitation of a vulnerable or elderly adult.
Domestic Violence Restraining Orders
A Petitioner may file a Domestic Violence Restraining Order if they have domestic violence by a family member or household member.
Domestic violence under Florida Statue 741.28 is 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 of one family or household member by another family or household member.”
Family members are spouses, former spouses, any persons related by blood or marriage, or who live together as a “family” in the same household. The exception is individuals with a child in common; regardless of living arrangements, they are “family.”
Repeat Violence Restraining Order
The Petitioner must prove that assault or battery took place to qualify to file for a repeat violence restraining order. Simply asserting that the Respondent has a history of violent tendencies will not suffice.
A repeat violence protective order usually occurs between two people who do not live together or are not family or involved in a domestic relationship.
Here are some common types of associations we see involving a repeat violence injunction:
- Employers and employees
- School or Classmates
The Petitioner must have:
- legitimate fear of imminent danger or violence
- and be able to prove at least two separate instances of assault took place.
Some examples of actions that are NOT admissible as the type of violence required for this restraining order:
- obscene hand gestures without an apparent act that places the Petitioner in fear
- Alluding that Respondent owns a gun and is not afraid of using it
- Receiving unwanted flowers or non-threatening letters from the Respondent
All of the above may feel scary and threatening to the Petitioner. Unfortunately, however, none of them are sufficient evidence to support an injunction for repeat violence.
Multiple acts of violence in a single incident are not considered repeat violence. If there is no time or distance between the violent acts, it doesn’t qualify. However, after Levy v. Jacobs, 69 So.3d 403 (Fla. 4th DCA 2011), just five minutes between two incidents is enough to get an injunction for repeat violence.
Stalking Violence Restraining Order
Florida Statute § 784.048 defines stalking as “willfully, maliciously, and repeatedly following, harassing or cyberstalking another person and while making a credible threat to that person. Furthermore, “harassment” is defined as “any actions toward the victim that have no legitimate purpose and that cause significant emotional distress.”
A “credible threat,” as defined by § 784.048, is:
- Any verbal or nonverbal threat that places the victim in reasonable fear
- Threats to their friends or family
- Any threat to the victim’s safety or the victim’s friends or family
- Making threats with the apparent ability to carry out the threat and cause harm
While Florida law carefully defines key terms under the stalking injunction statute, note that there is no legal definition for “substantial emotional distress.” As a result, stalking cases can be challenging due to the subjective nature of defining “substantial emotional distress.” Additionally, the above conduct defined as stalking must have occurred on at least two separate occasions for the Petitioner to file a stalking injunction.
Who Is Eligible to Pursue Stalking Injunctions in Florida?
Florida Statute § 784.0485 allows a person who is the victim of stalking (as defined above) or a parent or legal guardian for a minor child living at home who is the victim of stalking to file a protective injunction against stalking.
Sexual Violence Restraining Order
A Petitioner may file a Sexual Violence Restraining Order if one of the following criteria are met:
- The victim reported the violence to local law enforcement and is cooperating with any criminal proceedings.
- The offender is in prison for a sexual violence offense, their release is within 90 days, and any of the following has occurred:
- A forcible felony with a sexual act was attempted or committed.
- Sexual battery
- Luring or enticing a child
- Lewd or lascivious acts committed in front of a minor under 16
- Sexual acts performed by a child
Dating violence can happen in person or electronically and include physical, sexual, emotional, and verbal abuse.
The Petitioner may file for a Dating Violence Restraining Order if they have reasonable cause to believe they are in imminent danger from a person:
- They have been dating for at least six months.
- Whom they have had an intimate relationship with affection or expectation of a sexual relationship
- And if they have been involved continuously over time.
This does not include people you have briefly fraternized with in social or business contexts.
Exploitation of A Vulnerable or Elderly Adult
In Florida, a “vulnerable adult” is a person 18 years or older who cannot perform the normal activities of daily life or provide for their own care or protection. Or, if they are impaired due to:
- The infirmities of aging
- mental, emotional, sensory, dysfunction or disability
- Long-term physical or developmental disability of dysfunction
- Brain damage
Then they are considered a vulnerable adult.
To be eligible to file a petition for exploitation of a vulnerable adult restraining order, the Petitioner must prove that they are in imminent danger or are the victim of exploitation. This type of restraining order often protects the Petitioner and their assets.
To determine if you have reasonable cause or are the victim of exploitation, the court must consider all relevant factors alleged in the petition. Those factors include, but are not limited to:
- The relationship between the Petitioner and the Respondent
- If there is an ongoing Guardianship case
- If there have been any reports to a government agency regarding abuse, neglect, or exploitation of the vulnerable adult
- The results of any alleged reports or investigations
- How dependent the vulnerable adult is on the Respondent for care
- If the vulnerable adult has any alternative provisions for care in the absence of the Respondent
- The list of assets, accounts, and lines of credit at all financial institutions requesting to be frozen.
The most critical step a Petitioner can take is to ensure that they choose and file the correct type of restraining order.
If they fail to do so, the judge on duty that day will most likely deny the petition for the injunction. That’s why it behooves you to work with an experienced Florida Restraining Order Lawyer, regardless of your side.
How Do You File a Restraining Order in Florida?
In Florida, one can get a restraining order by filing a petition at the clerk’s office. A temporary injunction will last until a court hearing.
A judge must hear the case from both sides to obtain a long-term injunction and consider all the evidence. Then, the judge will decide to grant or deny the victim a permanent injunction.
If there is a restraining order against you and you violate it, you can get arrested and face criminal charges.
What Happens if Someone Files a Restraining Order Against Me in Florida?
If someone successfully obtains a restraining order against you, you will face certain restrictions as specified in the order.
Under a restraining order, you may not come within a certain distance of the victim’s home, work, school, or other specified locations. In addition, you may not contact the victim through any mode of communication (e.g., phone, text, letter, e-mail, etc.).
If you share a residence with the Petitioner, you will be permitted a one-time visit to the residence to retrieve personal belongings. However, you will not be allowed to pull up a moving truck, so be prepared to be fast and get what you absolutely need.
Can I Challenge a Florida Restraining Order?
Yes. If you are served with a restraining order, you have legal recourse. You can challenge the allegations brought against you at a final hearing.
At the hearing, the judge will hear the testimony from both the Petitioner and the Respondent. If there is evidence to support or refute the allegations, that also must be presented. Witnesses are also permitted to testify. While you are not required to obtain a Florida Restraining Order Lawyer, most people will hire one so that the case is presented correctly.
Penalties for Violating a Restraining Order in Florida
Anyone who violates a restraining order in Florida can face:
- Charges of a 1st-degree misdemeanor
- Up to $1,000 in fines
- Up to one year in jail
Ultimately, the severity of a violation will depend on the offender’s history, the act constituting a violation, and a list of other relevant factors.
Contact a Florida Restraining Order Lawyer Today
Do not underestimate the power of having an experienced Florida Restraining Order Lawyer on your side. We have handled countless restraining orders in Pinellas County, Florida, for both Petitioners and Respondents.
Whether you need to file a restraining order, challenge a restraining order, or have violated a restraining order, we can help. Please do not hesitate to contact us to help you navigate what can be an emotional and complicated process.
Contact us today for a free, no-obligation consultation.
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