Florida's four orders of protection against violence: distinguishing the difference.

• Author: Karan, Amy

As of July 1, 2003, Florida law provides for four distinct types of orders of protection against violence, also commonly known, locally and nationally, as restraining orders, and in Florida, legally called injunctions. These orders protect a person from domestic, repeat, dating, and sexual violence. This article surveys the differences between these four types of injunctive relief, and serves as a guide for practitioners to navigate their way through the four distinct causes of action. It is intended to be a primer on the law in this area rather than an in depth analysis.

All four types of injunctions are civil proceedings, and the Florida Family Law Rules of Procedure and the Florida Rules of Evidence apply. (1) The Florida Supreme Court has promulgated forms, some of which are mandatory. In order to ensure statewide uniformity and recognition by law enforcement, all courts are required to use the Supreme Court's temporary injunction and final judgment of injunction forms. (2) The forms, including petitions, various motions and orders are available online for viewing, printing, and/or downloading at www.flcourts.org.

When filing a case, it is advisable to use the Florida Family Law Rules version of the petition, track the statutory language, or contact your clerk's office to obtain a copy of the version in use in your county. All filing and service fees have been eliminated as of July 1, 2003. (3)

Once a petition has been filed, it is presented to a judge to consider whether an ex parte temporary injunction, valid for up to 15 days, should be granted. (4) Florida law only requires the court to review the four corners of the petition to determine whether there appears to be "an immediate and present danger of violence," the standard for issuance of temporary injunctions. (5) No police reports, photographs of injuries, or other supporting evidence need be presented.

If a temporary injunction is issued, a full evidentiary hearing must be scheduled within the 15-day period. The court may grant a continuance of the hearing for an additional 15 days, for good cause shown by either party, which includes an extension to obtain service of process. (6)

If the ex parte temporary injunction is denied because the court finds no appearance of an immediate and present danger, a final hearing must be granted. If the temporary injunction is denied because the petition is filed under the incorrect statute, a motion to amend to the correct statute should be filed. At the final hearing, the petitioner must prove the case by a preponderance of the evidence. As with the temporary injunction, no supporting documentation is required by law, although all admissible evidence should be presented.

"Final judgments" for protection against violence, commonly known as "permanent injunctions," remain in effect until modified or dissolved by the court. Therefore, at the court's discretion, the injunction may be indefinite or expire on a date certain. Petitioners should request the duration of the injunction they are seeking at the time of final hearing.

Injunctions may be extended beyond their expiration date, provided the request to extend is filed prior to actual expiration. In determining whether the injunction should be extended, the occurrence of new violence is not required. The court may consider the circumstances leading to the imposition of the original injunction, as well as subsequent events that may cause the petitioner to have continuing reasonable fear that violence is likely to recur in the future. (7)

When determining which cause of action is appropriate, the practitioner must first consider standing to file which is based solely upon the relationship between the parties. The four types of injunctions, the required standing, the elements of each cause of action, and the available relief will be discussed separately.

Domestic Violence

F.S. [section] 741.28 through 741.31 define domestic violence, create a cause of action for an injunction for protection against domestic violence, outline the relief available and set forth the violations that constitute crimes. Ch. 741 is the exclusive civil method to obtain protection against domestic violence. (8)

"Domestic violence" is defined by [section] 741.28 as 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 or death of one family household member by another.

Standing to file is conferred upon family or household members, which are defined as: spouses; former spouses; persons related by blood or marriage (including minors); (9) any person who is or was residing within a single dwelling with petitioner as if a family; (10) or a person with whom the petitioner has a child in common (regardless of marriage or cohabitation).

The petition may be filed in the circuit where the petitioner is currently or temporarily residing, where the respondent resides, or where the domestic violence occurred. (11) This allows a victim of violence, who has fled their home county, to obtain protection in their county of temporary residence without having to return to the site of the potential danger.

The court may issue an ex parte temporary injunction if the required relationship exists and the court finds that there is an immediate and present danger of domestic violence. The petitioner must plead and prove he or she has been a victim of domestic violence or that there is reasonable cause to believe he or she is in imminent danger of becoming a victim. Note that the statute is phrased in the disjunctive and only one of the two criteria need be satisfied: petitioner has been a victim, or has reasonable fear of imminent violence. (12)

When determining whether an immediate and present danger exists, the court considers the totality of the circumstances. In 2002, the legislature detailed 10 specific factors for the court to take into account. These are indicators of elevated danger and include acts or threats of violence; attempts to harm petitioner, family members or close associates; restraining petitioner from leaving the home or contacting police; prior orders of protection; injuring or killing a family pet; threats to use a gun or knife; previous criminal history; threats to kidnap or harm petitioner's children; and destruction of personal property...