DOMESTIC VIOLENCE BENCHCARD (2017) DEFINITION Domestic violence means 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 of death of one family or household member by another family or household member. 741.28(2). STANDING Petitioner and respondent must be family or household members. 741.30(1)(e). Family or household member means spouses, former spouses, persons related by blood or marriage, persons who are presently living together as if a family or who have lived together in the past as if a family and persons who are parents of a child together regardless of whether or not they have been married or lived together. 741.28(3). With the exception of persons who have a child in common, the family or household members must be currently residing together or have in the past resided together in the same single dwelling unit. 741.28(3). A minor child can file by and through a parent as next friend. Parrish v. Price, 71 So.3d 132 (Fla. 2d DCA 2011). There is no minimum residency or venue requirement. A petition may be filed in the circuit where the petitioner currently or temporarily resides, where the respondent resides, or where the domestic violence occurred. 741.30(1)(j). Petitioner must be a victim of domestic violence or have reasonable to believe he or she is in imminent danger of becoming a victim of any act of domestic violence. 741.30(1)(a). A person s right to petition for an injunction shall not be affected by such person having left a residence or household to avoid domestic violence. 741.30(1)(d). Being a spouse is not a requirement to petition for domestic violence. 741.30(1)(3). 1-1
No bond shall be required for entry of an injunction. 741.30(2)(b). EX PARTE TEMPORARY INJUNCTIONS In order to issue an ex parte temporary injunction, the court must determine whether an immediate and present danger of domestic violence exists. 741.30(5)(a). An ex parte temporary injunction may be denied if: If the court finds no basis for the issuance of an injunction, the petition may be denied without a return hearing; however, a denial of a petition for an ex parte temporary injunction shall be by written order noting the legal grounds for denial. 741.30(5)(b). When the only ground for denial is no appearance of an immediate and present danger of domestic violence, the petition for ex parte temporary injunction may be denied but the court shall set a full hearing on the petition for injunction with notice at the earliest possible time. 741.30(5)(b). Some circuits allow the petitioner to request in writing that the court dismiss the case rather than set a hearing. This practice increases victim safety. If it appears to the court that an immediate and present danger of domestic violence exists, the court may grant a temporary injunction ex parte, pending a full hearing, and may grant such relief as the court deems necessary, including: Restraining respondent from committing any acts of domestic violence. 741.30(5)(a)(1); Awarding petitioner temporary exclusive use and occupancy of the dwelling that the parties share or excluding the respondent from the residence of the petitioner. 741.30(5)(a)2; Awarding a temporary parenting plan including a time-sharing schedule which may award the petitioner up to 100 percent of the time-sharing on the same basis as provided in 61.13, and which remains in effect until the order expires or an order is entered in a subsequent proceeding determining those issues. 741.30(5)(a)3. Paternity must be legally established for the court to award time-sharing to the father; 1-2
Ordering respondent to surrender any firearms and ammunition in his or her possession to the specified sheriff s office pending further order of the court; Ordering such additional relief as the court deems necessary to protect the petitioner from domestic violence. Pursuant to Florida Family Law Rule of Procedure 12.610(c)(2), the temporary and permanent injunction forms approved by the Florida Supreme Court shall be the forms used for issuance of a temporary ex parte injunction. The injunction shall state on its face that it is valid and enforceable in all counties of the State of Florida. 784.0485(6)(c). Any such temporary injunction shall be effective for a fixed period not to exceed 15 days. 741.30(5)(c). A full hearing shall be set for a date no later than the date when the temporary injunction ceases to be effective. 741.30(5)(c). The court may grant a continuance of the hearing before or during a hearing for good cause shown by either party, which shall include a continuance to obtain service of process. 741.30(5)(c). Any injunction shall be extended if necessary to remain in full force and effect during any period of continuance. 741.30(5)(c). FINAL INJUNCTIONS ISSUED AFTER NOTICE AND HEARING The court shall allow an advocate from a state attorney s office, an advocate from a law enforcement agency, or an advocate from a certified domestic violence center who is registered under 39.905, to be present with the petitioner or respondent during any court proceedings or hearings related to the injunction for protection, provided the petitioner or respondent has made such a request and the advocate is able to be present. 741.30(7). The court may grant a continuance of the hearing for good cause shown by any party, which shall include a continuance to obtain service of process. A temporary injunction shall be extended if necessary during the period of continuance. 741.30(5)(c). 1-3
All domestic violence proceedings shall be recorded. Recording may be by electronic means as provided by the Rules of Judicial Administration. 741.30(6)(h). Upon notice and hearing, when it appears to the court that the petitioner is either the victim of domestic violence or has reasonable cause to believe he or she is in imminent danger of becoming a victim, the court may grant such relief as it deems proper, including an injunction: Restraining respondent from committing any acts of domestic violence; Awarding petitioner exclusive use and possession of a shared dwelling or excluding respondent from petitioner s residence; 741.30(6)(a)2; Providing petitioner with 100 percent of time-sharing in a temporary parenting plan that remains in effect until the order expires, or a subsequent order is entered which affects the placement of, access to, parental time with, adoption of, or parental rights and responsibilities for the minor child. 741.30(6)(a)3; Establishing temporary support for petitioner or for a minor child or children to remain in effect until the order expires, or a subsequent order is entered which affects the placement of, access to, parental time with, adoption of, or parental rights and responsibilities for the minor child. 741.30(6)(a)4; Ordering respondent to participate in treatment, intervention, or counseling at respondent s cost. If the court orders the respondent to participate in batterers intervention program, the court must provide the respondent with a list of such programs. 741.30(6)(a)(5). Referring petitioner to a certified domestic violence center. The court must provide the petitioner with a list of certified domestic violence centers in the circuit; however, the petitioner may not be ordered to attend counseling. 741.30(6)(a)6 A judgment should indicate on its face that it is valid and enforceable in all counties in Florida. 741.30(6)(d)1. Pursuant to Florida Family Law Rule of Procedure 12.610(c)(2), the temporary and permanent injunction forms approved by the Florida Supreme Court shall be the forms used for issuance of a permanent injunction. The final injunction order must provide that it is a violation of 790.233, and a first degree misdemeanor, for the respondent to have in his or her care, 1-4
custody, possession or control any firearm or ammunition, unless 943.10 applies. 741.30(6)(g); 790.233(1); 18 U.S.C. 922(g)(9). The terms of the injunction stay in effect until modified or dissolved. Either party may move the court to modify or dissolve the injunction at any time. Specific allegations are not required. Such relief may be granted in addition to other civil or criminal remedies. 741.30(6)(c) and (10). Petitioner may move to extend the injunction. The court has broad discretion to extend the injunction after considering the circumstances. Florida Family Law Rule of Procedure 12.610(c)(4)(B). COMPLIANCE, ENFORCEMENT, AND VIOLATIONS OF INJUNCTIONS The court may enforce a violation of an injunction for protection against domestic violence through a civil or criminal contempt proceeding, or the state attorney may prosecute it as a criminal violation under 741.31. The court may enforce the respondent s compliance with the injunction through any appropriate civil and criminal remedies, including but not limited to, a monetary assessment or fine. 741.30(9)(a). At the time of service of the final judgment, the respondent should be served with an Order to Appear in 30 to 45 days for purposes of confirming compliance with any court ordered obligations (such as BIP, MH, parenting, child support etc.) and to review on-going safety and time-sharing considerations. The petitioner should be given notice of the compliance hearing. Set follow-ups as needed. A person who willfully violates an injunction for protection commits a misdemeanor of the first degree. 741.31(4)(a). It is a violation of 790.233, and a first degree misdemeanor, for the respondent to have in his or her care, custody, possession or control any firearm or ammunition unless respondent receives or possesses a firearm or ammunition for use in performing official duties. 741.31(4)(b). A person with two or more prior convictions of a violation of an injunction for protection, who then subsequently commits a violation of an injunction against the same victim commits a felony of the third degree. 741.31(4)(c). 1-5