Domestic violence

• Author: Annette J. Szorosy/Stephanie Matalon
• Profession: General Magistrate/General Magistrate
• Pages: 561-644

DOMESTIC

VIOLENCE

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CHAPTER 10

Domestic Violence

QUICK VIEW

Domestic violence is a specialized emergency matter for which statutes and rules set forth specif‌ic procedures for

the family lawyer. There are both civil and criminal aspects of a domestic violence action to consider. Violence

provides unique issues for the family lawyer. Violence in a family may extend to other family members and even

the children. If there are children of the marriage, domestic violence may thrust the family into dependency

court. The family lawyer may or may not be able to recover attorneys’ fees for involvement in the domestic

violence issues in a family case. The family lawyer should gain expertise not only in representation of a client

in court, but in identif‌ication of violence issues and how to deal with these issues for the safety and protection

of the client. A client may fail to reveal violence within the family, seeking a quick escape by acceding to what

the client feels the spouse will accept in an agreement. The family lawyer may f‌ind that the client is sent to the

hospital or is killed when the agreement is presented. Similarly, f‌iling a petition for dissolution of marriage may

have dire consequences to such a client. Use of false claims of domestic violence to gain litigation advantage,

exclusive use of the marital home, and sole parental responsibility of the minor children, may have long-term

consequences to the lawyer and his or her client. This chapter is intended to assist the family lawyer in dealing

with violence within a family case. The previous chapter on emergencies should be reviewed as many family

emergencies overlap with domestic violence issues.

TABLE OF CONTENTS

I. OVERVIEW

A. Identif‌ication of Domestic Violence

§10:01 In General

§10:02 Lawyer Resources, Materials, and Information Concerning Domestic Violence

§10:03 Def‌initions

§10:04 Client Presentation at Initial Conference

§10:05 “I want nothing.”

§10:06 “Here is our agreement.”

§10:07 Pref‌iling Client Considerations

§10:08 Terminology and Identif‌ication

B. Representing Petitioner

§10:20 Interviewing Petitioner

§10:21 Claims and False Claims

§10:22 Reasonable Emergency Investigation

§10:23 Referring Client to Courthouse Self-Help Center

§10:24 Act Immediately Using Florida Supreme Court Approved Family Law Forms

§10:25 Practical Prevention

§10:26 What May Not Be Suff‌icient for Entry of Domestic Violence Injunction

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Florida Family Law and Practice 10-2

C. When There Are Children

§10:40 In General

§10:41 Claims and False Claims

§10:42 Filing Domestic Violence Petition on Behalf of Child in Addition to Petitioner

§10:43 Signs of Ef fects of Domestic Violence on Children

§10:44 Applicable Chapter 61 Provisions

§10:45 Applicable Chapter 39 Provisions and Dependency

§10:46 Substance or Alcohol Abuse Overlay

§10:47 Repor ting Requirements When Domestic Violence Petition Is Filed

§10:48 Investigation: Delay of Hearing on Entr y of Permanent Injunction on

Behalf of Child and Conf‌identiality Issues

§10:49 Both Parents Will Be Investigated

§10:50 Advising Parent

§10:51 Temporary Placement With Someone Other Than Either Parent

D. Representing Respondent

§10:60 Inter viewing Respondent

§10:61 Reasonable Emergency Investigation

§10:62 Fif th Amendment Privilege Against Self Incrimination

§10:63 Clerk of Cour t and Law Enforcement Compliance With Statutory Mandates

§10:64 Agreement to Term Without Admission

§10:65 Limitations on Time -Sharing With Children; Voluntary Compliance With Interventions

§10:66 Credibility

§10:67 Consequences to Lawyer

§10:68 Consequences to Client

II. PREFILING PROCEDURAL AND SUBSTANTIVE CONSIDERATIONS

§10:80 In General

§10:81 Jurisdiction and Venue

§10:82 Recording of Hearing

§10:83 Use Florida Supreme Court Approved Forms Only

§10:84 Whether Attorneys’ Fees Can Be Recovered

§10:85 Tactics to Recover Attorneys’ Fees

§10:86 Enforcement of Injunction for Protection Against Domestic Violence

§10:87 Violations of Injunctions for Protection Against Domestic Violence

§10:88 Caveats on Mediation and Arbitration and Counseling

§10:89 Hearing on Permanent Injunction for Protection Against Domestic Violence

§10:90 Telephone Calls and Text Messages as Bases for

Seeking Injunction for Protection Against Domestic Violence

§10:91 Employee Leave Available by Law

§10:92 Impact of Dut y of Candor

§10:93 Impact of Electronic Filing and Supreme Court Rule Changes on Domestic Violence

§10:94 Use of Electronic Devices

§10:95 Application of Foreign Law and Enforcement of a

Judgment or Order of a Court of a Foreign Country

III. SECTION 741.30, FLORIDA STATUTES, AND RULE 12.610

§10:100 Cause of Action for Domestic Violence

§10:101 Right to Petition Not Affected by Leaving Residence

§10:102 May Be Sought by Family or Household Members

§10:103 Parties Not Required to Be Represented by Lawyers

§10:104 How Evidence Is Presented

§10:105 Title to Real Property Not Affected

§10:106 Domestic Violence

§10:107 Family or Household Member

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10-3 Domestic Violence

§10:108 Law Enforcement Off‌icer

§10:109 “Imminent” and “Immediate and Present” Danger

§10:110 Assault

§10:111 Aggravated Assault

§10:112 Battery

§10:113 Aggravated Battery

§10:114 Sexual Assault

§10:115 Sexual Battery and Sexual Violence

§10:116 Stalking, Cyberstalking, and Cybersexual Harrassment

§10:117 Harassment

§10:118 Course of Conduct

§10:119 Credible Threat

§10:120 Aggravated Stalking

§10:121 Kidnapping

§10:122 False Imprisonment

§10:123 Relationship to Other Actions

§10:124 Cause of Action May Be Sought Whether or Not Any Other Cause of Action Is Pending

§10:125 If Subsequent Chapter 61 Action Is Filed

§10:126 Intentional Interference With Custody—Civil Remedy

§10:127 Intentional Interference With Custody—Criminal Penalty

§10:128 Civil Remedies on Court Order of Parenting Plan, Including Time-Sharing Schedule

§10:129 Trespass on Property of Certif‌ied Domestic Violence Center

§10:130 Orders Directed to Victim

IV. PROCEDURAL ISSUES

A. Basic Points

§10:140 No Mutual Orders of Protection

§10:141 No Filing Fee

§10:142 No Bond

§10:143 Criminal Cause of Action

§10:144 Civil Cause of Action

§10:145 Violation of Injunction for Protection Against Domestic Violence

§10:146 Separate Criminal Action or Injunction Pending

B. Powers and Duties of Clerk of Court

§10:150 Provide Assistance to Petitioners

§10:151 Provide Forms

§10:152 Provide Privacy; Conf‌identiality

§10:153 Provide Certif‌ied Copies

§10:154 Provide Informational Brochures on Domestic Violence

§10:155 Furnish Pleadings and Information for Service to Law Enforcement

§10:156 Certif‌ication and Delivery to Parties

§10:157 Collection and Transfer of Assessments or Fines

§10:158 Violation of Injunction for Protection Against Domestic Violence

C. Duties and Powers of Law Enforcement

1. Assistance to Victim

§10:170 Obtain Medical Treatment

§10:171 Domestic Violence Center

§10:172 Notice of Legal Rights and Remedies

2. Investigation

§10:180 Arrest Policy; Complaints From Parties

§10:181 Written Report

§10:182 Violations of Injunctions for Protection Against Domestic Violence

3. Additional Duties

§10:190 Effect Service