Restraining Justice: How Florida Can Better Aid Pro Se Survivors of Domestic Violence with Appeals of Injunction for Protection Cases.

Author:Waksler, Caitlyn R. Shield

"Lawyers have a license to practice law, a monopoly on certain services. But for that privilege and status, lawyers have an obligation to provide legal services to those without the wherewithal to pay, to respond to needs outside themselves, to help repair tears in their communities." (1)

Abuse between intimate partners, especially domestic violence, (2) is a nationwide epidemic that often goes unreported. (3) In Florida, there were 106,979 reported domestic violence offenses in 2017: (4) 162 of these offenses were domestic violence-related murders; (5) 18 of these reported offenses were manslaughters; (6) 1,580 of these offenses were rapes; (7) 16,657 of these reported offenses were aggravated assaults; and 85,721 were "simple assaults." (8) One-hundred eighty-nine of these reported offenses included aggravated stalking and 369 involved stalking, (9) and 1,521 of these reported offenses involved threats and/or intimidation. (10) Approximately 75% of women who are killed by their abusers "are murdered when they attempt to leave or after they have left an abusive relationship." (11) The statistics are clear--survivors of domestic violence are in danger.

Many survivors (12) who finally muster up the courage to report domestic violence and seek help through legal avenues are either indigent or have no access to funds due to financial control by their abuser. (13) What is currently being done to aid survivors of domestic violence who cannot afford an attorney, who need legal assistance in the trial and appellate courts? The answer: It appears not nearly enough is being done in Florida (yet).

This article focuses on how Florida's statutes and appellate processes can be modified to better assist pro se survivors of domestic violence with appeals of injunction for protection cases. Currently, Florida has statutory frameworks in place to assist survivors who seek to file a petition for what is legally known as an "injunction for protection," but is more colloquially referred to as a restraining order. (14) In the appellate context, certain legal formalities act as obstacles to survivors who seek to appeal or defend civil court decisions regarding injunctions for protection pro se. (15)

Injunctions for Protection

An injunction for protection is a civil court order that directs a specified party, known as the "respondent," not to have any contact with the filing party, known as the "petitioner." (16) There are five bases for which a petitioner may file a petition for an injunction for protection in Florida: 1) domestic violence; 2) dating violence; 3) sexual violence; 4) repeat violence; and 5) stalking. (17) While the statutory requirements for the five types of injunction petitions are similar in some respects, each type of injunction petition has different requirements as to the petitioner's relationship with the respondent and the behavior required for a judge to grant that petition. (18)

The statutes governing injunctions for protection in Florida do not require either the petitioner or respondent to be represented by an attorney, nor is there a statutory right to an attorney in injunction for protection proceedings. (19) Either party may hire an attorney if they have the financial wherewithal to do so. Although some jurisdictions have legal aid or other pro bono organizations that provide legal representation in injunction for protection cases, many petitioners and respondents nonetheless appear pro se in these proceedings, perhaps because they are unaware of the free services.

Some existing laws assist pro se survivors seeking to file a petition for an injunction for protection. Unlike the filing of other civil proceedings that require payment of a filing fee, the assessment of such a fee for an injunction petition is prohibited. (20) While a clerk of the court may not provide legal advice to the petitioner, the clerks are required to assist petitioners with filing their injunction petition, as well as with filing motions seeking to enforce a granted injunction for protection if the petitioner later believes that the respondent has violated the injunction. (21) All clerks' offices shall also provide simplified petition forms for the injunction, any modifications, and the enforcement thereof, including instructions for completion. (22)

The Florida Supreme Court has created standard forms that may be used by pro se petitioners filing a petition for an injunction for protection. (23) These forms explain, using as minimal legalese as possible, what information the petitioner should include in the (24) petition, what the petitioner should expect after filing, and what action the petitioner may take if the petition is either granted or denied. (25) These forms also explain the legal definition of domestic violence, dating violence, sexual violence, repeat violence, and stalking, and the findings the court must make to grant the petition.

These forms explain that if the facts contained in the petition meet the requisite legal standards, the judge will sign an immediate temporary injunction for protection. (26) The respondent will not receive notice that an injunction petition has been filed until the temporary injunction is personally served by the sheriff. (27) The temporary injunction will last either until a full hearing can be held or 15 days. (28) The court may extend the temporary injunction beyond the 15-day period for good reason, including, but not limited to, if the court is unable to obtain service on the respondent. (29)

The temporary injunction is issued ex parte, meaning the judge has considered only the petitioner's information. (30) The temporary injunction gives the petitioner the date of the hearing at which he or she will be expected to testify about the facts in the petition. (31) At this hearing, the respondent will also have the opportunity to testify. (32) The judge will then decide whether to issue a final injunction for protection. (33)

If the judge denies the petition because it appears to the court that no imminent danger exists, the court shall set a full hearing unless the petitioner requests no hearing be set. (34) If the judge denies the petition, the petitioner may either amend the petition to include facts illustrating imminent danger by filing a supplemental affidavit in support of the injunction petition; attend a hearing and present facts that support the petition; and/or dismiss the petition. (35)

Why Change Is Needed

It is time for Florida to address the lack of appellate assistance for pro se appellate litigants by creating an avenue for lawyers to provide assistance with appeals in injunction for protection cases. The...

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