What is Domestic Violence?
Under the Florida Statutes, Domestic Violence is defines as “any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offenses resulting in physical injury or death of one family or household member by another family or household member.” F.S. 741.28.
Is Domestic Violence Criminal?
In Florida, Domestic Violence can be civil and or criminal. However, a Domestic Violence Injunction is civil in nature, so one who has a Domestic Violence Injunction issued against them has not had a criminal record created against them based on the issuance of the injunction. In Florida, a Petition for Protection against Domestic Violence can result in an injunction against the Respondent (Defendant) which prohibits him or her from going to places that the Petitioner frequents like his or her home and work places for a certain period of time or, on occasion, permanently. Violation of a Domestic Violence Injunction can result in a criminal violation and can result in punishment by the court and creation of a criminal record if found guilty.
What are Domestic Assault or Domestic Battery?
An assault indicates that the perpetrator threatened the victim in some manor and created a fear of imminent contact. An assault could be verbal or the result of an action (i.e. pointing a gun at someone). A battery is the result of unwelcome physical contact (i.e. punching the victim). A Domestic Assault or a Domestic Battery indicates that the individual was a family member, spouse, partner, or another individual whereby the perpetrator spent at least one night sleeping in the same household with the victim. A Domestic Battery or Domestic Assault are criminal charges that will typically show-up on a background check where someone has been convicted of the crime. Although the penalties for a first time defendant are misdemeanor penalties, perhaps the greatest penalty is that such a charge cannot be sealed or expunged under Florida law. In contrast, a Domestic Violence Injunction is civil in nature and may not show-up on a criminal background check. The author has received complaints from clients over the years that a record of a Domestic Violence Injunction being issued has prevented them from being considered for employment or residential tenancies.
What is the procedure for obtaining a Domestic Violence Injunction?
Initially, a victim of domestic violence can contact his or her local State Attorney’s Office or courthouse to find out where to go to complete the paperwork necessary to obtain an injunction. An injunction is an order prohibiting or limiting someone from certain activities. A victim completes the paperwork necessary to file a petition requesting an injunction for protection from domestic violence. A judge assigned to the domestic violence division will typically be presented with all of the injunctions filed at the end of the day and the court will issue temporary injunctions against the Respondents (Defendants) that afternoon. Some petitions will be granted and some may be denied depending on whether or not the petition makes enough allegations to be considered a prima facie case. A prima facie case is one in which the minimum number of allegations that constitute the offense exists. The Petitioner has the burden of proof, but if he or she does not state the essential elements of a domestic violence case, the petition will be denied. The court will frequently issue a date for a hearing approximately 2 weeks following the granting of a temporary injunction or a denial of such. At the hearing, the judge can decide whether to sustain a temporary injunction issued and enter a final order of injunction or whether or not to issue an injunction based upon the evidence presented at the hearing. The author cautions that the petition is supposed to place one on notice of the allegations and, therefore, it may be improper to allow new allegations to be brought up at the hearing.
Do you need to file for an injunction or have you been served with an injunction?
If you are considering filing for an injunction or if you have been served with an injunction, you should seek an experienced attorney for help. The attorneys at the Law Office of David M. Goldman, PLLC are experienced at both Family Law and Criminal Law and they can help you sort out the factors that will help you decide how to proceed. To schedule a consultation with an experienced family law attorney, Call (904) 685-1200 today. Law Office of David M. Goldman, PLLC, 4115 Hendricks Ave., Jacksonville, Florida 32207. Telephone (904) 685-1200.
About the author
Neil Weinreb is a licensed Florida attorney who has been practicing family law for over 17 years in North Florida. Mr. Weinreb works for the Law Office of David M. Goldman in Jacksonville, Florida. Mr. Weinreb has worked as an adjunct professor teaching law to paralegal students at Jones College in Jacksonville, Florida. You can contact Mr. Weinreb at the Law Office of David M. Goldman for a free initial consultation.