Being a victim of domestic violence is a serious matter. If you have been the victim, you need to seek help to protect yourself. The laws for domestic violence and seeking an injunction for protection against domestic violence are found in Chapter 741 of the Florida Statutes.
Domestic Violence is defined in §741.28, means 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 or household member by another family or household member. Family or household member means spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family or who have resided together in the past as if a family, and persons who are parents of a child in common regardless of whether they have been married. With the exception of persons who have a child in common, the family or household members must be currently residing or have in the past resided together in the same single dwelling unit.
Any person who has been the victim of domestic violence or has cause to reasonably believe he or she is in imminent danger of becoming the victim of any act of domestic violence, has the ability to file a sworn petition in the circuit court for an injunction for protection against domestic violence. §741.30.
An employer is required under the law to allow up to 3 working days of leave related to domestic violence if the employee or a family member is the victim of domestic violence. §741.313. This includes seeking to file an injunction, seeking medical care related to an incident of DV, making home secure or seeking new housing to protect himself/herself from the perpetrator, seek legal assistance, and attend court ordered proceedings. This leave is at the discretion of the employer as to whether it is with or without pay, but this only applies to employers who have more than 50 employees and to employees who have been with the employer for more than 3 months. The employee must use all available sick leave and vacation days before using days under the law.
If you have been the victim or feel you could be harmed by someone, it is highly recommended that you seek protection by filing for an injunction of protection against domestic violence. While it is not necessary to hire an attorney for this process, it would be a wise decision to have one assist you with preparing the petition and attending the hearing to present sufficient evidence in order to ensure that your injunction is granted. The Florida Supreme Court have developed approved forms for filing for an injunction of protection against domestic violence, and they are available on the web, (http://www.flcourts.org/core/fileparse.php/293/urlt/980a.pdf), or copies can be obtained from the local courthouse. At the courthouse there are persons who can assist with preparing and filing the paperwork for you. There is no cost or charge for filing.
The petition itself is easy to understand and provides for you space to describe what has happened to you, including describing how you were the victim or how it is you are in imminent danger or being the victim of domestic violence. You also list the person who committed the offense, providing a description and where he or she is living or can be located, and where you want protection to be provided. If you live in a residence with the person then you will be asking the court to allow you to continue to reside there with protection and that person who committed the offense against you to stay away. This also includes the place where you work, somewhere you might frequent like church, and if you have children, where your children go to school.
If you have children together with the perpetrator, then you will also need to file a financial affidavit, uniform child custody jurisdiction and enforcement act affidavit, and parenting plan so the court can determine the amount of child support you are entitled to and a time sharing arrangement for both parents to see the children. The court has the authority to order that you, as the victim, receive 100% of the time sharing with your children. Of course, if the child is the victim or is in imminent danger or being the victim, you will also need to request from the court protection on your child’s behalf. If that is the case be sure to clearly include the child with your petition, or prepare and file a separate one on your child’s behalf.
If there are sufficient allegations described in the petition, a judge will issue a temporary injunction for protection against domestic violence and the clerk will schedule a return hearing to be held within 15 days. This return hearing is very important as you will be required to present all your evidence and witnesses, if any, as to what occurred and your perpetrator will have the opportunity to present his/her own evidence and witnesses in defense. After the judge has been presented with all the evidence and heard from all the witnesses, the judge will determine if there is sufficient proof that an act or domestic violence occurred, or that there is sufficient evidence that the victim is in imminent fear of being the victim of an act of domestic violence and then will issue an permanent injunction for protection against domestic violence. Now, this is not a permanent injunction per se, as the law requires that the injunction can be modified or dissolved. The judge, based upon the evidence presented, will usually determine a time frame for the injunction.
If the allegations are not clear, the court may issue a return hearing on the petition without a temporary restraining order. It would be helpful to have an attorney prepare the witnesses and exhibits and conduct the hearing.
If there are insufficient allegations, the injunction will be denied. Therefore, properly setting out the clear allegations that entitle the petitioner to relief, is of the utmost importance.