The Six Types of Injunctions

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1 Chapter1 1-1 INTRODUCTION 1-1:1 What is Domestic Violence? In 2012 alone, Florida reported over 108,000 crimes of domestic violence that s almost 296 crimes of domestic violence per day in the Sunshine State; 1 or, to put it another way, approximately one crime of domestic violence every six minutes. The crimes tracked include murder, manslaughter, forcible rape, forcible sodomy, forcible fondling, aggravated assault, aggravated stalking, simple assault, threat/intimidation, and stalking. If you look at the civil side of the equation, during Fiscal Year (July 1, 2011 until June 30, 2012), the state recorded over 84,000 domestic violence petitions. 2 To mirror the context above, that s 230 petitions per day, or about 9 petitions per hour. These petitions include allegations of physical violence, stalking, and psychological abuse. Further in the book I ll define domestic violence the way the state defines it in the statutes. For now, let me simply say that domestic violence is a terrible act against people who can least protect themselves from it. The damage it causes, not just on the victims but on the lives of those exposed to it, is immeasurable. Suffice to say it is a crime that echoes into future generations. 1. Data taken from: Florida Department of Law Enforcement. Crime in Florida. Florida uniform crime report (2012) at Data taken from: Office of the State Courts Administrator. Trial Court Statistics Summary Reporting System (2013). FLORIDA DOMESTIC VIOLENCE FL_Domestic_Violence_FullBook.indb 1 11/27/14 7:04:23 PM

2 Chapter INJUNCTION FOR PROTECTION AGAINST DOMESTIC VIOLENCE Any person who is either the victim of domestic violence or who has reasonable cause to believe that he or she is in imminent danger of becoming a victim of any act of domestic violence by a family or household member has standing to file a sworn petition for an injunction for protection against domestic violence. 3 The first injunction on our plate is the Domestic Violence injunction. It provides protection in the classic case of domestic violence where a husband hits a wife, a mother abuses her child, or You get the idea. The definition above sets the rules for the applicability of the protective order, but what does it all mean? Let s break it down and look at each part. 1-2:1 The Relationship The first aspect we need to look at is: who was involved? What s the relationship between the victim and the abuser? The Florida Statutes spell out that, for a victim to have standing to request a domestic violence injunction, the victim and the abuser must be either family or household members though they don t need to be currently married for the victim to be eligible for protection under this statute. 4 Thankfully, we don t need to guess at what constitutes a family or household member. The statute states that family and household members are: 1) Spouses, former spouses, people related by blood or marriage, or people who have lived together in the same single dwelling unit (house, apartment, condominium), AND They currently live or in the past lived together in the same single dwelling unit as a family; OR 3. Fla. Stat (1)(a), (1)(e) (2013). 4. Fla. Stat (1)(e) (2013). 2 FLORIDA DOMESTIC VIOLENCE 2015 FL_Domestic_Violence_FullBook.indb 2 11/27/14 7:04:23 PM

3 INJUNCTION FOR PROTECTION AGAINST 1-2 DOMESTIC VIOLENCE 2) Parents of a child in common, regardless of whether they have been married or lived together in the same single dwelling unit. 5 Of course, this definition still leaves a few questions unanswered. How long do the parties have to live together before they re eligible for protection? What about people who are in a relationship but don t live together? Or nuclear family members 6 who don t live together? Fortunately, the Florida courts have helped answer these questions. In Kokoris v. Zipnick, the Fourth District ruled that a temporary stay of one week was sufficient to satisfy the statute. 7 In that case, the petitioner sought to protect his two daughters from their aunt, with whom the girls lived for one week during an emergency, temporary situation. 8 The appellate court held that this was sufficient to meet the statutory requirement, though it acknowledged that what would be considered sufficient should be decided on a case-by-case basis. 9 The Second District answered the question about people in a relationship who do not live together. In Slovenski v. Wright, the appellate court held that unrelated parties who were in a relationship but who had never lived together in the same residence did not have standing to pursue a domestic violence injunction. 10 Finally, in 2011 the Second District answered the question about nuclear family members who ve never lived together. In Fleshman v. Fleshman, the court ruled that a father and an adult son who had never lived in the same dwelling unit could not satisfy the standing requirements laid out under A final word of notice to all you Respondents attorneys out there, if you believe that your client and the other party do not meet the standing requirement laid out in the definition of Family or household member, you must raise the standing objection 5. Fla. Stat (3) (2013). 6. Like a father and son, for example. 7. Kokoris v. Zipnick, 738 So. 2d 369 (Fla. 4th DCA 1999). 8. Kokoris v. Zipnick, 738 So. 2d 369, 371 (Fla. 4th DCA 1999). 9. Kokoris v. Zipnick, 738 So. 2d 369, 371 (Fla. 4th DCA 1999). 10. Slovenski v. Wright, 849 So. 2d 349 (Fla. 2d DCA 2003). 11. Fleshman v. Fleshman, 50 So. 3d 797 (Fla. 2d DCA 2011). FLORIDA DOMESTIC VIOLENCE FL_Domestic_Violence_FullBook.indb 3 11/27/14 7:04:23 PM

4 Chapter 1 before the final injunction is entered. 12 If you fail to timely raise the objection, that issue will not be available for review on appeal. 1-2:2 The Act The next step in this break down is to ask what act or acts can serve as the basis for this injunction. The statute says that a person who is a victim of acts of domestic violence can seek protection, as can someone who has reasonable cause to believe that he or she is in imminent danger of becoming a victim of domestic violence. 13 Let s talk about the first part of that statement. If the petitioner is a victim of domestic violence As I m sure you remember from the Definitions section of my introduction, 14 domestic violence is defined in Florida as 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. 15 The list is fairly definite; the majority of crimes in the definition require violence, limitations to personal freedom, or serious threats of violence. But what about the second half of our statement the part about has reasonable cause to believe that he or she is in imminent danger of becoming a victim of domestic violence? 16 How can a court be expected to accurately assess whether someone s fear of domestic violence is reasonable? Fortunately, the court isn t left completely bereft of guidance. The domestic violence statute sets out the factors that a court can look at when making a reasonableness determination. Those factors are: 1) The history between the petitioner and the respondent, including threats, harassment, stalking, and physical abuse. 12. Andrews v. Byrd, 700 So. 2d 1250 (Fla. 1st DCA 1997). 13. Fla. Stat (1)(a) (2013). 14. See Introductory section I-2: Fla. Stat (3) (2013). 16. Fla. Stat (1)(a) (2013). 4 FLORIDA DOMESTIC VIOLENCE 2015 FL_Domestic_Violence_FullBook.indb 4 11/27/14 7:04:23 PM

5 INJUNCTION FOR PROTECTION AGAINST 1-2 DOMESTIC VIOLENCE 2) Whether the respondent has attempted to harm the petitioner or family members or individuals closely associated with the petitioner. 3) Whether the respondent has threatened to conceal, kidnap, or harm the petitioner s child or children. 4) Whether the respondent has intentionally injured or killed a family pet. 5) Whether the respondent has used, or has threatened to use, against the petitioner any weapons such as guns or knives. 6) Whether the respondent has physically restrained the petitioner from leaving the home or calling law enforcement. 7) Whether the respondent has a criminal history involving violence or the threat of violence. 8) The existence of a verifiable order of protection issued previously or from another jurisdiction. 9) Whether the respondent has destroyed personal property, including, but not limited to, telephones or other communications equipment, clothing, or other items belonging to the petitioner. 10) Whether the respondent engaged in any other behavior or conduct that leads the petitioner to have reasonable cause to believe that he or she is in imminent danger of becoming a victim of domestic violence. 17 I should point out that the court isn t limited to these factors, either. The statute explicitly says that the court can consider all relevant factors, even those not specifically listed. 18 The factors enumerated in the statute for determining reasonableness are much more expansive than the span of actions that constitute domestic violence. If the domestic violence has not yet occurred, the court can broaden its gaze into such factors as 17. Fla. Stat (6)(b) (2013). 18. Fla. Stat (6)(b) (2013). FLORIDA DOMESTIC VIOLENCE FL_Domestic_Violence_FullBook.indb 5 11/27/14 7:04:23 PM

6 Chapter 1 destruction of property, injury to pets, and harm or attempted harm of people unrelated but closely associated to the petitioner. Petitioners attorneys, take note. If you are able to get your client to file a petition for protection before the violence actually occurs, you are able to open more doors on inquiry. But how wide does this broadened gaze go? The Third District found that driving erratically or threateningly, intentionally blocking another vehicle from exiting a highway, and rear-ending the other vehicle was enough to constitute a fear of imminent danger such that the entry of a protective order was warranted. 19 However, Florida courts have been careful not to allow too broad a view when determining whether injunctions are permitted. As an example, the First District held that repeated telephone calls which did not provide any objective reason to fear imminent domestic violence, along with a lack of any actual physical violence, were insufficient to warrant the entry of an injunction against domestic violence. 20 As a second example, the Second District ruled that an ex-husband s actions did not rise to the level sufficient to grant a protective injunction. 21 In that case, the ex-husband was accused of a number of things, including: (1) packing his belongings and vacating the shared house, leaving only a loaded gun behind (which the ex-wife interpreted as a threat); (2) leaving angry messages on the ex-wife s phone and irate notes at the home; (3) being a heavy drinker who became angry and depressed when he drank; (4) threatening to make the ex-wife s life miserable if she didn t buy him out ; and (5) having a mental health problem for which he did not take his medication. 22 In its dismissal, the court noted that there was no record of the ex-husband ever hurting or threatening to hurt the ex-wife. Absent anything else, the actions of the ex-husband were simply not sufficient to demonstrate that the injunction against domestic violence was appropriate. 19. Abravaya v. Gonzalez, 734 So. 2d 577 (Fla. 3d DCA 1999). 20. Gustafson v. Mauck, 743 So. 2d 614 (Fla. 1st DCA 1999). 21. Oettmeier v. Oettmeier, 960 So. 2d 902 (Fla. 2d DCA 2007). 22. Oettmeier v. Oettmeier, 960 So. 2d 902, 903 (Fla. 2d DCA 2007). 6 FLORIDA DOMESTIC VIOLENCE 2015 FL_Domestic_Violence_FullBook.indb 6 11/27/14 7:04:23 PM

7 INJUNCTION FOR PROTECTION AGAINST 1-2 DOMESTIC VIOLENCE 1-2:3 The Time In addition to looking at the who and what of the domestic violence injunction, we would be well-served to examine the when as well. Our guiding statute, (1)(a), says that the petitioner must be a victim of domestic violence or must have a reasonable basis to conclude that he or she is in imminent danger of becoming a victim. 23 However, this still leaves us with questions. For instance, if there was domestic violence, when must it have happened in relation to the filing of the petition? Alternatively, if we re looking at the reasonable cause to believe that domestic violence is imminent, how imminent does the threat need to be? The Florida Statutes do not provide much guidance on this issue. There is no requirement that the incidents forming the basis for the petition happen within a certain time frame. In fact, the only guidance the statutes seem to offer is in the subsection detailing the factors a court can consider when determining reasonableness of the belief that domestic violence is imminent. In subsection 6(b), the statutes suggest the court can review the history between the two parties, the respondent s criminal history (if he or she has one), and the existence of a previous protective order (if one exists). 24 However, none of the language used in subsection 6(b) attaches a specific or set window of relevance with regard to the history of the parties. When the statutes seem unclear or loosely worded, the next place to look is in the case law surrounding the issue. Unfortunately, there s isn t much case law on this. I was only able to find one case that discussed the time frame surrounding the history of the parties or claims made by the petitioner. That case was Moore v. Hall, wherein the respondent pushed the petitioner and mailed her a knife in the back of a statuette (which may seem to fit the requirements of the statute) twelve years before the petitioner filed the petition. 25 Since the threatening contact, the two parties had engaged in litigation and other contact without 23. Fla. Stat (1)(a) (2013). 24. Fla. Stat (6)(b) (2013). 25. Moore v. Hall, 786 So. 2d 1264 (Fla. 2d DCA 2001). FLORIDA DOMESTIC VIOLENCE FL_Domestic_Violence_FullBook.indb 7 11/27/14 7:04:23 PM

8 Chapter 1 further violence or serious threat. The Second District held that twelve years was too long ago to warrant a protective order, especially in light of the evidence that the two parties had had contact since then. 26 Therefore, an outer limit has been established twelve years on the length of time a court will likely allow between the incidents in question and the petition for protection. Unfortunately, aside from that single case, attorneys are without guidance and if they choose to test this issue further will find themselves in uncharted waters. 1-2:4 The Place The final piece of this break down lies in an analysis of the where. Where must the violence have occurred? To put it another way, must the violence have occurred within Florida for a petitioner to be eligible for protection against domestic violence? At this point, I m sure you ve got the domestic violence statute memorized, right? If so, you can quickly review it and see that nowhere in the statute is there a mention of a location at which or a jurisdiction in which the violence must have occurred. 27 So we turn to the courts, in the hopes that there is a case or two out there that can help answer our admittedly nebulous question. Unfortunately, the courts aren t any help either. There is no case law in Florida detailing a limit on where the violence must have occurred. However, if we engage in a bit of deductive reasoning, we might find something that can help. In 2001, the Fourth District held that a petition for a domestic violence injunction is a private action, and thus is to be treated like any other civil action. 28 A person becomes subject to the jurisdiction of courts of state submits themselves to the jurisdiction of the state courts when that person commits a tortuous act within the state of Florida. 29 In other words, it could be argued that if the violence or threats of violence occur outside 26. Moore v. Hall, 786 So. 2d 1264 (Fla. 2d DCA 2001). 27. For those of you who don t have it memorized, here it is again: Any person who is either the victim of domestic violence or who has reasonable cause to believe that he or she is in imminent danger of becoming a victim of any act of domestic violence by a family or household member has standing to file a sworn petition for an injunction for protection against domestic violence. Fla. Stat (1)(a) (2013). 28. Tobkin v. State, 777 So. 2d 1160, 1164 (Fla. 4th DCA 2001). 29. Fla. Stat (1)(a)(2) (2013). 8 FLORIDA DOMESTIC VIOLENCE 2015 FL_Domestic_Violence_FullBook.indb 8 11/27/14 7:04:24 PM

9 INJUNCTION FOR PROTECTION AGAINST 1-3 SEXUAL VIOLENCE of the state of Florida, and if the actor/respondent does not live in the state of Florida, he or she may not be subject to the jurisdiction of the state courts. Confused? I was too, when I first tried to wrap my head around this. Let s look at from another angle, and see if that helps. If the parties both live in Florida and the incident occurs in Florida, the parties are all subject to the jurisdiction of the Florida state courts. If the parties both live in Florida, but the violence occurs outside of Florida, the parties are all subject to the jurisdiction of the Florida state courts. 30 However, if the petitioner is a resident of Florida, but the respondent is not, and the incident underlying the petition occurs outside of Florida, there is no solid answer as to whether that respondent would be subject to the jurisdiction of the state courts. Attorneys should pursue this line of thought at their own discretion. 1-3 INJUNCTION FOR PROTECTION AGAINST SEXUAL VIOLENCE A person who is the victim of sexual violence or the parent or legal guardian of a minor child who is living at home who is the victim of sexual violence has standing in the circuit court to file a sworn petition for an injunction for protection against sexual violence on his or her own behalf or on behalf of the minor child if: 1. The person has reported the sexual violence to a law enforcement agency and is cooperating in any criminal proceeding against the respondent, regardless of whether criminal charges based on the sexual violence have been filed, reduced, or dismissed by the state attorney; or 30. Florida retains personal jurisdiction over those individuals who choose to live inside its borders; see Pennoyer v. Neff, 95 U.S. 714 (1878), if you have questions over this historical doctrine. FLORIDA DOMESTIC VIOLENCE FL_Domestic_Violence_FullBook.indb 9 11/27/14 7:04:24 PM

10 Chapter 1 2. The respondent who committed the sexual violence against the victim or minor child was sentenced to a term of imprisonment in state prison for the sexual violence and the respondent s term of imprisonment has expired or is due to expire within 90 days following the date the petition is filed. 31 The statute providing protection for victims of sexual violence is quite different from the other types of protection offered in the Florida Statutes. But what s it all mean? Let s take a look at each part. 1-3:1 The Relationship The statute is quite explicit regarding who can file a petition for protection: any person who is a victim of one incident of sexual violence. 32 Further, there is no requirement that the respondent the one who allegedly committed the violent act have any existing relationship of any sort with the petitioner. In this regard, this form of injunction is far broader that the domestic violence injunction discussed above. Additionally, as the statute states, the parent or legal guardian of a child who is living at their home can file a petition for protection if that parent has reasonable cause to believe that the minor was a victim of sexual violence. 33 There is one particularity to the parent filing the petition on behalf of the minor. That particularity is this: if the party against whom the injunction is sought is also a parent, step-parent, or legal guardian to the minor, then the filing parent or legal guardian must have direct physical evidence or affidavits from eyewitnesses of the sexual violence, or must himself or herself be a direct eyewitness. 34 Thus, I can easily summarize this section of our inquiry. There is no required relationship between the petitioner and the respondent. 31. Fla. Stat (2)(c) (2013). 32. Fla. Stat (2)(c) (2013). 33. Fla. Stat (4)(a)(2) (2013). 34. Fla. Stat (4)(a)(1) (2013). 10 FLORIDA DOMESTIC VIOLENCE 2015 FL_Domestic_Violence_FullBook.indb 10 11/27/14 7:04:24 PM

11 INJUNCTION FOR PROTECTION AGAINST 1-3 SEXUAL VIOLENCE 1-3:2 The Act The first thing we want to ask is, what types of crimes or violence are considered when a victim asks for protection? The answer sounds obvious, right? Crimes involving sex or something. But what does Florida consider a crime involving sex? I mean, is there a subset of crimes in the statutes, Sexual Crimes? While it s not quite that easy, it s pretty close. The Florida Statutes give us a list of what we ought to consider when thinking about whether a Sexual Violence Injunction is possible. Florida Statute (1)(c) says: Sexual violence means any one incident of: 1) Sexual battery, as defined in chapter 794; 2) 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; 3) Luring or enticing a child, as described in chapter 787; 4) Sexual performance by a child, as described in chapter 827; or 5) 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. 35 Now, it would probably be a good idea if we knew what each of the terms in the list meant, in addition to just knowing that they re on the list. So we again turn to the statutes. 1) Sexual battery is, oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, sexual battery does not include an act done for a bona fide medical purpose. 36 2) A lewd or lascivious act is not explicitly defined in the Florida Statues. However, the types of lewd 35. Fla. Stat (1)(c) (2013). 36. Fla. Stat (1)(h) (2013). FLORIDA DOMESTIC VIOLENCE FL_Domestic_Violence_FullBook.indb 11 11/27/14 7:04:24 PM

12 Chapter 1 or lascivious violations are detailed. They include lewd or lascivious battery, 37 lewd or lascivious molestation, 38 lewd or lascivious conduct, 39 and lewd or lascivious exhibition. 40 3) Luring or enticing a child is defined as, A person 18 years of age or older who intentionally lures or entices, or attempts to lure or entice, a child under the age of 12 into a structure, dwelling, or conveyance for other than a lawful purpose 41 4) Sexual performance by a child is described in the Florida Statutes as being any of a number of violations. 42 To paraphrase the lengthy statute, it is impermissible to use, authorize use of, permit use of, direct, produce, and/or promote a child of less than 18 years of age in a sexual performance or in sexual conduct. Further, it is impermissible to possess, control, or intentionally view any recording, image, depiction, or other presentation which includes in whole or part sexual conduct or sexual performance by a child of less than 18 years of age. 37. Fla. Stat (4) (2013). A person who (a) engages in sexual activity with a person 12 years of age or older but less than 16 years of age; or (b) encourages, forces, or entices any person less than 16 years of age to engage in sadomasochistic abuse, sexual bestiality, prostitution, or any other act involving sexual activity commits lewd or lascivious battery. 38. Fla. Stat (5)(a) (2013). A person who intentionally touches in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a person less than 16 years of age, or forces or entices a person under 16 years of age to so touch the perpetrator, commits lewd or lascivious molestation. 39. Fla. Stat (6)(a) (2013). A person who (1) intentionally touches a person under 16 years of age in a lewd or lascivious manner; or (2) solicits a person under 16 years of age to commit a lewd or lascivious act commits lewd or lascivious conduct. 40. Fla. Stat (7)(a) (2013). A person who, in the presence of a victim who is less than 16 years of age (1) intentionally masturbates; (2) intentionally exposes the genitals in a lewd or lascivious manner; or (3) intentionally commits any other sexual act that does not involve actual physical or sexual contact with the victim, including, but not limited to, sadomasochistic abuse, sexual bestiality, or the simulation of any act involving sexual activity, commits lewd or lascivious exhibition. 41. Fla. Stat (2)(a) (2013). 42. Fla. Stat (2)-(5) (2013). 12 FLORIDA DOMESTIC VIOLENCE 2015 FL_Domestic_Violence_FullBook.indb 12 11/27/14 7:04:24 PM

13 INJUNCTION FOR PROTECTION AGAINST 1-3 SEXUAL VIOLENCE 5) This last subsection appears to be a catch-all provision, meant to catch those sexual violence crimes that weren t specifically listed in the sexual violence statute. Now that I ve completely bored you and inundated you with statutes, let s deconstruct it all into a much more manageable format. 1-3:3 The Act Deconstructed At its essence, this injunction exists to provide protection from a very specific type of violence. The overall arc of protection is aimed at keeping people, especially minors, safe from sexual violence. The state has decided that victims of these crimes deserve not only justice, but assurances that they will not be victimized this way again. There is no requirement that there be any repeated behavior or pattern of behavior; a single incident of sexual violence is sufficient to trigger this form of protection. 1-3:4 The Time As with the domestic violence injunction, there is no clear guidance as to a time limit before which the violence must have been committed in order for the injunction for protection to be available. In fact, the sexual violence injunction statute suggests that a longer window between the violence and the petition may be allowed. The statute says, The respondent who committed the sexual violence against the victim or minor child was sentenced to a term of imprisonment in state prison for the sexual violence and the respondent s term of imprisonment has expired or is due to expire within 90 days following the date the petition is filed. 43 In other words, even if the person who committed the sexual violence is in prison as a result of the crime, the petitioner is eligible for protection if the offender is about to be released or was recently released from prison. While any further analysis of the implications of this provision would be purely speculative, the language clearly suggests that a length of time equal to or 43. Fla. Stat (2)(c)(2) (2013). FLORIDA DOMESTIC VIOLENCE FL_Domestic_Violence_FullBook.indb 13 11/27/14 7:04:25 PM

14 Chapter 1 greater than the duration of a prison sentence for the sexual violence will still allow the petitioner to be eligible for the sexual violence injunction. Please note that no court has ruled on this issue; as such, attorneys are advised that issues of time length may vary from judge to judge and jurisdiction to jurisdiction. 1-3:5 The Criminal Component The sexual violence injunction has some language quite different from that in the domestic violence injunction. Namely, the criminal component requirement. As the statute says, a person is not eligible for protection unless he or she has reported the sexual violence to a law enforcement agency and is cooperating in any criminal proceeding against the respondent, or the respondent has already been criminally convicted of the sexual violence underlying the current petition. 44 As such, if you are a petitioners attorney, before your client may take advantage of this form of protection, you should ensure that he or she has reported the sexual violence and is cooperating with the police OR that that the alleged offender is already in prison as a result of the sexual violence underlying the petition. If neither of these has happened, your client will not be eligible for protection. If you are a respondents attorney, you may wish to examine the criminal case files and any notes from the police investigation to determine whether the petitioner has cooperated in the criminal proceeding. Where there is uncooperative behavior by the petitioner, you may have the ability to demonstrate a failure to comply with the letter of the law INJUNCTION FOR PROTECTION AGAINST DATING VIOLENCE Any person who is the victim of dating violence and has reasonable cause to believe he or she is in imminent danger of becoming the victim of another act of dating violence, or any person 44. Fla. Stat (2)(c) (2013). 45. These issues will addressed more fully in Chapter 2, 2-3:5, which details strategies and tactics. 14 FLORIDA DOMESTIC VIOLENCE 2015 FL_Domestic_Violence_FullBook.indb 14 11/27/14 7:04:25 PM

15 INJUNCTION FOR PROTECTION AGAINST 1-4 DATING VIOLENCE who has reasonable cause to believe he or she is in imminent danger of becoming the victim of an act of dating violence, or the parent or legal guardian of any minor child who is living at home and who seeks an injunction for protection against dating violence on behalf of that minor child, has standing in the circuit court to file a sworn petition for an injunction for protection against dating violence :1 The Relationship The key factor distinguishing the dating violence injunction from the other forms of protection is the relationship between the parties. Unlike the sexual violence injunction, where no relationship is required, and the domestic violence injunction, where the parties must be family or household members, the dating violence injunction is for people who are in a relationship. In fact, the statute explicitly says that this protection is for parties who had or have a continuing and significant relationship of a romantic or intimate nature. 47 In terms of what defines or constitutes a romantic or intimate relationship, the statute has more to say. To determine whether the relationship is intimate or romantic, the court is told to look at three factors: 1) A relationship that existed within the last six months; 2) A relationship characterized by the expectation of affection or sexual involvement; and 3) A relationship that had the parties involved over time and on a continuous basis over the course of the relationship. 48 Finally, the statute notes that the type of relationship that underlies this type of injunction cannot be of a casual nature, nor 46. Fla. Stat (2)(b) (2013). 47. Fla. Stat (1)(d) (2013). 48. Fla. Stat (1)(d)(1)-(3) (2013). FLORIDA DOMESTIC VIOLENCE FL_Domestic_Violence_FullBook.indb 15 11/27/14 7:04:25 PM

16 Chapter 1 can it include the type of relationship comprised of the ordinary interactions of business or social contexts. 49 To sum it up, this form of protective injunction is for those parties who are in a romantic relationship characterized by frequent interactions and an expectation of affection. One last thing! As with the Injunction for Protection Against Sexual Violence, the parent or legal guardian can file a petition for a dating injunction on behalf of a minor child living in the home with them if that parent has reasonable cause to believe that the minor was a victim of dating violence. 50 As above, if the party against whom the injunction is sought is also a parent, stepparent, or legal guardian to the minor, then the filing parent or legal guardian must have direct physical evidence or affidavits from eyewitnesses of the dating violence, or must himself or herself be a direct eyewitness. 51 Please note that while the injunction statute does not address this issue specifically, if the person against whom the dating violence injunction is sought is a parent, step-parent, or legal guardian to the minor, there are other legal consequences that will be triggered including but not limited to a dependency inquiry, mandatory reporting issues, and criminal charges (statutory rape, molestation, etc). If you are an attorney for either party where the parties are in such a situation as above, be aware of the possible ramifications that could evolve from the Petition for Protection. 1-4:2 The Act This protective injunction is intended to protect dating partners from inter-partner violence. But what constitutes violence, for the purposes of this injunction? If you remember back to our introductory section, I laid out the definition of violence as it s used in this context. If you don t remember, that s alright. Here s the definition again: Violence means any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual 49. Fla. Stat (1)(d) (2013). 50. Fla. Stat (4)(a)(2) (2013). 51. Fla. Stat (4)(a)(1) (2013). 16 FLORIDA DOMESTIC VIOLENCE 2015 FL_Domestic_Violence_FullBook.indb 16 11/27/14 7:04:25 PM

17 INJUNCTION FOR PROTECTION AGAINST 1-5 REPEAT VIOLENCE battery, stalking, aggravated stalking, kidnapping, or false imprisonment, or any criminal offense resulting in physical injury or death, by a person against any other person. 52 So, in the context of the dating injunction, the act needs to be one of the specifically enumerated forms of violence or else fit within the catch-all provision at the end of the definition, any criminal offense resulting in physical injury or death. 1-4:3 The Time If you re a discerning reader which I m sure you are you ve spotted a strange wrinkle in the language defining this type of injunction. It said something about six months. But what s that got to do with anything? It turns out that there is a time frame associated with this type of injunction. The parties must have been in a dating/romantic relationship within the last six months. This does not mean that the relationship must have existed for six months, only that there was an intimate relationship at some point within the last six months. 53 As with the domestic violence injunction, we have the same language reasonable cause to believe that he or she is in imminent danger of becoming a victim. 54 However, unlike the statute providing for the domestic violence injunction, the statute creating the dating violence injunction does not list what factors a court can consider when assessing reasonableness and imminent danger. As such, attorneys should be aware that what constitutes imminent danger is something of a gray area, and should proceed carefully. 1-5 INJUNCTION FOR PROTECTION AGAINST REPEAT VIOLENCE Any person who is the victim of repeat violence or the parent or legal guardian of any minor child who is living at home and who seeks an injunction 52. Fla. Stat (1)(a) (2013). 53. Waler v. Lovett, 905 So. 2d 972 (Fla. 3d DCA 2005). 54. Fla. Stat (2)(b) (2013). FLORIDA DOMESTIC VIOLENCE FL_Domestic_Violence_FullBook.indb 17 11/27/14 7:04:25 PM

18 Chapter 1 for protection against repeat violence on behalf of the minor child has standing in the circuit court to file a sworn petition for an injunction for protection against repeat violence. 55 The repeat violence injunction was designed to address a very specific, if broad, question regarding domestic violence: what if the victim and abuser have no real domestic relationship? What protection can the state offer in that situation? 1-5:1 The Relationship Unlike the domestic and dating violence injunctions, the repeat violence injunction requires no relationship between the petitioner and respondent. They do not have to be dating or living together. They do not need to be friends, neighbors, or even co-workers. Put plainly, and in the most straightforward of language, no relationship is required for eligibility for the repeat violence injunction. And again, as with the sexual violence and dating violence injunctions, the parent or legal guardian can file a petition for a repeat injunction on behalf of a minor child living in the home with them if that parent has reasonable cause to believe that the minor was a victim of repeat violence. 56 As above, if the party against whom the injunction is sought is also a parent, step-parent, or legal guardian to the minor, then the filing parent or legal guardian must have direct physical evidence or affidavits from eyewitnesses of the two requisite acts of violence, or must himself or herself be a direct eyewitness :2 The Act If no relationship is required, then what exactly defines the repeat violence injunction? Why aren t these injunctions ordered and passed out like candy? The statute provides that, in order for a person to be eligible for the repeat violence injunction, there must be two incidents of 55. Fla. Stat (2)(a) (2013). 56. Fla. Stat (4)(a)(2) (2013). 57. Fla. Stat (4)(a)(1) (2013). 18 FLORIDA DOMESTIC VIOLENCE 2015 FL_Domestic_Violence_FullBook.indb 18 11/27/14 7:04:25 PM

19 INJUNCTION FOR PROTECTION AGAINST 1-5 REPEAT VIOLENCE violence. 58 It s not enough that two people have gotten in a fight or a random accident at some point in time in their lives. The statute requires that there be enough contact that there were at a minimum two violent incidents. Further, as with the dating violence injunction, the state has clearly defined what constitutes violence for the purposes of the repeat violence injunction: any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, or false imprisonment, or any criminal offense resulting in physical injury or death, by a person against any other person. 59 It should be mentioned that, unlike the domestic violence and dating violence injunctions, the repeat violence injunction does not allow for a petition alleging that the petitioner has reasonable cause to believe that he or she is in imminent danger of becoming a victim. The repeat violence injunction requires two actual acts of violence before a petitioner is eligible for protection. Additionally, the First District has ruled that simply sending flowers and attempting to talk to a person does not constitute violence or stalking. 60 Even if the attempts at conversation make the petitioner uncomfortable, they are not enough to rise to a level of intentional harm or distress so as to trigger the repeat violence injunction :3 The Time The injunction statute provides us with some guidance as to the time frame that is required to be afforded protection: 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 62 Of the two required acts of violence, one of them must be within six months of the filing of the petition. The other act of violence does not have a similar time requirement, and the courts in Florida have not issued any clarification as how remote the first incident can 58. Fla. Stat (1)(b) (2013). 59. Fla. Stat (1)(a) (2013). 60. McMath v. Biernacki, 776 So. 2d 1039 (Fla. 1st DCA 2001). 61. McMath v. Biernacki, 776 So. 2d 1039, (Fla. 1st DCA 2001). 62. Fla. Stat (1)(b) (2013). FLORIDA DOMESTIC VIOLENCE FL_Domestic_Violence_FullBook.indb 19 11/27/14 7:04:25 PM

20 Chapter 1 be before it is too far in the past to be considered. A clear reading of the statute, however, seems to indicate that the first incident of violence has no time requirement. As long as it occurred, and the second act of violence was in the six-month window, it seems likely that a court would find that the repeat violence injunction definition has been met. Attorneys, please note that this is, for the moment, theory; theory founded on a reasonable deduction, but theory nonetheless. Should you choose to delve into this gray area, be aware of the uncertainty of the path. 1-6 INJUNCTION FOR PROTECTION AGAINST STALKING A person who is the victim of stalking or the parent or legal guardian of a minor child who is living at home who seeks an injunction for protection against stalking on behalf of the minor child has standing in the circuit court to file a sworn petition for an injunction for protection against stalking. 63 The stalking injunction is the state s newest form of protection; enacted in 2012, it was designed to specifically address the problem of stalking and cyberstalking. As it is quite new, there is a dearth of case law regarding the particulars of the injunction. 1-6:1 The Relationship As with the repeat injunction, there is no relationship required between the two parties. They don t need to be family, friends, or co-workers; they can be complete strangers, as long as the other requirements of the statute are met. 64 It is important to note that the stalking injunction, like the previous forms of injunction, allows for a parent or legal guardian to file on behalf of their minor child who lives at home with them. However, unlike the previous forms of injunction, the parent or legal guardian s basis for believing the child is a victim of stalking is unclear. Whereas the other injunction types require, at a minimum, reasonable cause to believe, with heightened requirements where 63. Fla. Stat (1)(a) (2013). 64. Fla. Stat (2013). 20 FLORIDA DOMESTIC VIOLENCE 2015 FL_Domestic_Violence_FullBook.indb 20 11/27/14 7:04:26 PM

21 INJUNCTION FOR PROTECTION AGAINST STALKING 1-6 the other party is the other parent, step-parent, or guardian, the stalking injunction has no such requirement. 65 Whether this absence was a mistake or intentional, the language is very different and, as such, should put an attorney on alert to possible issues. 1-6:2 The Act As I said above, the stalking injunction is like the repeat violence injunction in that neither of them requires any relationship between the parties. However, the stalking injunction and repeat violence injunction differ in the acts that they provide protection from. While the repeat violence injunction provides protection from any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, or false imprisonment, or any criminal offense resulting in physical injury or death, by a person against any other person, 66 the stalking injunction only provides protection from stalking and cyberstalking. 67 Which is an enumerated act of violence against which the repeat violence injunction provides protection. But I digress. The statutes define stalking as willfully, maliciously, and repeatedly following, harassing, or cyberstalking another person. 68 Thus, if there is evidence of stalking between the parties, the victim can petition the court for a stalking injunction. As I mentioned earlier, because this type of injunction is so new, the case law is fairly absent. However, there are a few cases that concern the type of activity that can be considered stalking or aggravated stalking. The Fourth District, in two separate cases, provided some clarity on what can or more particularly, what cannot be considered stalking or aggravated stalking. In Stone v. State, the court held that a single incident on one occasion is not stalking. The definitions of stalking and aggravated stalking both 65. Compare Fla. Stat (4)(a) & (b) (2013) and Fla. Stat (3) (2013). 66. Fla. Stat (1)(a) (2013). 67. Fla. Stat (1)(a) (2013). 68. Fla. Stat (2) (2013). FLORIDA DOMESTIC VIOLENCE FL_Domestic_Violence_FullBook.indb 21 11/27/14 7:04:26 PM

22 Chapter 1 require repetition; a single incident is by its very nature, devoid of repetition. 69 Further, in Butler v. State, the Fourth District held that a diffuse set of acts that did not form a course of conduct and which did not create any emotional distress in the petitioner cannot constitute aggravated stalking. 70 As defined in the statutes, stalking and aggravated stalking require following, harassing, or cyberstalking. 71 Harassment, the only action that the appellant was accused of, is further defined as to engage in a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose, and directed at a specific person, that causes substantial emotional distress in such person. 72 As such, we can take away from these two cases that there must be multiple instances of activity, and they must form some sort of pattern or course of conduct before the petitioner can be eligible for protection from stalking. 1-6:3 The Time Unlike the repeat violence injunction, the stalking injunction does not specify a time frame in which the stalking must occur for the petitioner to be eligible for protection. In fact, there is no mention in the statute of any time requirement at all. 73 As such, it is uncertain whether the stalking must be occurring at the time the petition is filed, or must have occurred within a certain time frame of the filing of the petition, or must have simply occurred at any time before the filing of the petition. Attorneys, be aware of this uncertainty, and proceed with care. 1-7 THE CHAPTER 39 INJUNCTION At any time after a protective investigation has been initiated pursuant to part III of this chapter, the court, upon the request of the department, a law enforcement officer, the state attorney, or other 69. Stone v. State, 798 So. 2d 681 (Fla. 4th DCA 2001). 70. Butler v. State, 715 So. 2d 339 (Fla. 4th DCA 1998). 71. Stalking and aggravated stalking are defined in Fla. Stat (2) and (3) (2013), respectively. 72. Fla. Stat (1)(a) (2013). 73. See for yourself. Fla. Stat (2013). 22 FLORIDA DOMESTIC VIOLENCE 2015 FL_Domestic_Violence_FullBook.indb 22 11/27/14 7:04:26 PM

23 THE CHAPTER 39 INJUNCTION 1-7 responsible person, or upon its own motion, may, if there is reasonable cause, issue an injunction to prevent any act of child abuse. Reasonable cause for the issuance of an injunction exists if there is evidence of child abuse or if there is a reasonable likelihood of such abuse occurring based upon a recent overt act or failure to act. 74 Established in 2008, the Chapter 39 injunction was designed to be an alternative to the at-the-time customary on behalf of (OBO) petitions for protection used to protect children from violence and harm. Specifically, it was designed to be used as a crossover mechanism in dependency court. For those of you unaware of dependency court, I ll try to be brief. 75 In dependency court, the Department of Children and Families (DCF) has been called to investigate allegations that parents or legal guardians are not caring for their children properly. DCF will investigate the family, looking for signs of abandonment, abuse, or neglect any one of which could be cause for the state to step in and remove the child or children from the parent s or guardian s care, making them dependents of the state. If the parents can demonstrate corrective behavior, they can gain reunification with their children, which is the goal of every dependency action. When, in the course of an investigation, DCF and its investigators find signs of domestic violence against the children by one or more of the parents, it, along with a number of other actors, can file the Chapter 39 petition for protection. This form of injunction is the least commonly used form of injunction, but if you plan on practicing in the area of civil domestic violence, you ll need to be aware of what this injunction can do. 1-7:1 The Petitioner The first and more important feature of this injunction is the wide spread of people who can file the petition. As the statute says, the court, upon the request of the department, a law enforcement 74. Fla. Stat (1) (2013). 75. More information about Dependency and Domestic Violence can be found in the later section of this book, Crossover Cases. FLORIDA DOMESTIC VIOLENCE FL_Domestic_Violence_FullBook.indb 23 11/27/14 7:04:26 PM

24 Chapter 1 officer, the state attorney, or other responsible person, or upon its own motion 76 Thus, while the most common petitioner for a Chapter 39 injunction is DCF, the statute allows for police, attorneys, any responsible person, or even the court, on its own motion. This is wildly different from the other forms of injunction, where the petitioner must be the victim of the abuse or a parent or guardian of the victim. There is a lot of theory crammed behind the Chapter 39 injunction, but the basic reason for such a wide spread of possible petitioners is as follows: if one parent is abusing the child or children, there s a high likelihood that he or she is also abusing the other parent. In such instances, there is no chance that the abuser will file the petition for the child victim. Further, there is a high likelihood that the other victim, the adult victim, will also fail to file for a petition for protection, because of any number of things: (1) out of fear that the abuser will escalate the abuse; (2) out of fear that he or she will be blamed for allowing the abuse to happen; (3) out of fear that the court will break the family up; and/or (4) out of a sense of numbness and the belief that nothing will change the abuser s behavior. As such, the Chapter 39 injunction opens the role of the petitioner to anyone who has reasonable cause to believe that child abuse is happening or that the child is in danger of such abuse occurring :2 The Act The underlying act that can make a child eligible for protection is, any act of child abuse. 78 Of course, that only makes us ask, What s defined as child abuse? The statutes define child abuse as, any willful act or threatened act that results in any physical, mental, or sexual abuse, injury, or harm that causes or is likely to cause the child s physical, mental, or emotional health to be significantly impaired. Abuse of a child includes acts or omissions Fla. Stat (1) (2013). 77. Fla. Stat (1) (2013). 78. Fla. Stat (1) (2013). 79. Fla. Stat (2) (2013). 24 FLORIDA DOMESTIC VIOLENCE 2015 FL_Domestic_Violence_FullBook.indb 24 11/27/14 7:04:26 PM