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Domestic Violence

Whether you are the victim of domestic violence or the victim of a false accusation of domestic violence, such matters must be taken seriously. The lawyers at The Gufford Law Firm, P.A. have tried hundreds of domestic violence cases throughout the State of Florida. Many people who are involved in a domestic violence case do not realize the important and serious implications that such cases carry with them. When dealing with a domestic violence case, it is important for you to be represented by an attorney who understands how to examine and cross-examine witnesses that are important to the case such as the parties themselves, law enforcement officers, 911-operators, medical/mental health personnel, etc. When faced with a domestic violence case, many people feel that they can just “show up” to court and tell the judge their story. What those people do not realize is that nothing could be further from the truth. There are rules of court and evidence that can be used for and against you in Court. For example, unless permitted by the Court by way of a separate motion, children are often not permitted to testify. This fact usually comes as a surprise to most people. Since children are many times either the victims of domestic violence or the only witnesses to it, being armed with this information is often the key to winning. Either getting the child’s testimony into evidence or keeping it out is often the key to success or failure depending upon your point of view. Many people also believe that they can introduce into evidence signed, notarized statements, police reports, etc. to support or defend the case. Unfortunately, those people often learn the hard way from the opposing attorney or the judge that such statements are usually inadmissible as they are considered to be “hearsay”.

A judge has tremendous power in a domestic violence case to decide many things such as which party will have exclusive use and possession of the parties’ home, temporary child custody/timesharing issues, temporary alimony and child support as well as the simple fact of either continuing the injunction in place on a permanent basis, a specified time period or not at all. Thus, whether you are a victim of domestic violence or a false accusation of domestic violence the case needs to be taken seriously as the implications can be significant and far-reaching.

Additionally, it should be noted that all domestic violence proceedings in the 19th Judicial Circuit and most other circuits are taped. Thus, the tapes form the domestic violence proceeding itself can be used by either the State of Florida or the defense in a subsequent criminal proceeding as well as a subsequent custody proceeding. Thus, for those defending an injunction, an important consideration may be to invoke their 5th amendment rights against self incrimination so that their own words cannot be used against them in a subsequent criminal matter.

Domestic Violence- Definition

"Domestic violence" is defined by statute to mean any assault, battery, sexual assault, sexual battery, or any criminal offense resulting in physical injury or death on one family or household member by another who is or was residing in the same single dwelling unit. (See Fla. Stat. 741.28) “Family or household member" is defined as spouses, former spouses, adults related by blood or marriage, persons who are presently residing together as if a family or who resided together in the past as if a family, and persons who have a child in common regardless of whether they have been married or have resided together at any time.

Injunctions for protection against domestic violence

Pursuant to Florida law, there is a statutory cause of action for an injunction for protection against domestic violence. The process is initiated by a petition by the victim or by family or household members. The petitioner need not be a spouse, and need not be represented by an attorney. However, as noted above, domestic violence injunction actions can have severe consequences if they are not taken seriously. The action cannot affect title to any real estate although it can affect temporary use and possession of the property until further court order. The court cannot issue mutual orders of protection. However, in the event that both parties have filed or injunctions against each other and the evidence justifies it, the Court can enter injunctions in favor of both parties and against the other. Court filing fees are usually waived, no bond is required, and the clerk of the court is required to assist petitioners in seeking both injunctions and enforcement for violations thereof.

The sworn petition must be in substantially the form set forth in the statute. Upon the filing of the petition by the alleged victim, the court is required to set a hearing and the respondent must be personally served with a copy of the petition and other specified documents. If there is an immediate and present danger of domestic violence, the court may grant a temporary injunction ex parte (without prior notice), pending a full hearing. One important point to remember is that the petitioner need not demonstrate that he or she has been the victim of domestic violence or an assault; the petitioner is only required to show reasonable cause to believe that he or she is about to become a victim of domestic violence.

Upon notice and hearing, the court may grant such relief as the court deems proper. Such relief may include temporary custody and visitation (timesharing), child support, spousal support, etc. Simply because one party is found to have committed an act of domestic violence does not prohibit that party from seeking relief in the form of timesharing with children and/or child/spousal support. Enforcement procedures are also provided for, which include civil or criminal contempt proceedings. The petitioner or the respondent may move the court to modify or dissolve an injunction at any time. Another section permits the petitioner to file with the clerk of the circuit court an affidavit in support of the violation, which will be immediately forwarded to the state attorney, who may file criminal charges or an order to show cause why the respondent should not be held in criminal contempt; also, certain violations constitute a misdemeanor of the first degree, punishable as provided by law. In addition, Florida’s domestic violence law provides for the recognition of foreign protection orders issued by a court of competent jurisdiction of a state of the United States (other than Florida), the District of Columbia, an Indian tribe, or a commonwealth, territory, or possession of the United States.

§ 741.30, Fla. Stat., as amended in 2005, provides that an order of temporary custody, visitation, or temporary support remains in effect until the order expires or an order is entered by a court of competent jurisdiction in a pending or subsequent civil action or procedure affecting the placement of, access to, parental time with, adoption of, or parental rights and responsibilities for the minor child. Thus, if an injunction is entered, its affects can be long lasting and substantial until such time as the Court modifies its order in a subsequent action.