Everything You Wanted to Know About Restraining Orders

Everything You Wanted to Know About Restraining Orders But Were Afraid to Ask

by James Disinger
01/20/20
Table of contents

What is a restraining order?

The term “Restraining Order” does not appear in the statutes (laws) of the State of Florida, but it is a very common term that we as a society use to refer to an order from a Court limiting contact between people. You may have also heard of an “Order of Protection.” However, the legal term is “Injunction” and there are only certain reasons that a person can apply to a judge to obtain such an order. This is a CIVIL event, but injunction cases are often initiated at the same time as criminal cases, and normally those criminal cases involve domestic violence or sexual violence.

Florida Statutes 784.046 and 784.0485 lists the five types of events or allegations that allow a person to ask for an injunction, but they are as follows:

  • Domestic Violence,
  • Sexual Violence,
  • Dating Violence,
  • Repeat Violence, and
  • Stalking

Each of those five events or allegations have different requirements for the Court to consider, including the relationship that is alleged between the two parties.

Domestic Violence Restraining Order

A Petition for Injunction for Domestic Violence can be filed against a person who either now or has in the past lived with the petitioner as a “family.”  That can include people who are related by blood or marriage (whether currently married or not), parents of children, stepparents, adoptive parents, etc. “Domestic Violence” includes:

  • Assault
  • Aggravated Assault
  • Battery
  • Aggravated Battery
  • Sexual Battery
  • Stalking
  • Aggravated Stalking
  • Kidnapping
  • False Imprisonment
  • Any other criminal offense resulting in physical injury or death to a petitioner or petitioner’s family or household members who reside in the same single dwelling unit with the Petitioner

The Court will first determine if a “domestic” relationship exists or existed at the time of the event, and then consider the facts of the petition. Then, the Court will determine if a No Contact Order is appropriate, as well as other possible requirements.  Why does that matter? If the Court enters an Injunction against someone, that person may not be able to return to the family residence, they may have to surrender any firearms that they own, and they may be required to participate in classes. If they violate that Court’s order for No Contact by harassing or following the person they have been ordered to leave alone, they can be charged with a new felony charge, even if they have not been convicted of the event that led to the injunction being entered.

Sexual Violence Restraining Order

This type of injunction can be requested if the relationship does not meet the definition of “family” as listed above and the person against whom the injunction is being sought is alleged to have committed any number of sexual crimes, including those listed in Florida Statutes 794, 787, 800, 827, or any forcible felony in which a sexual act was committed or attempted. The person seeking the injunction must have reported the event to law enforcement and must be cooperating with the investigation OR the person who is alleged to have committed the act of sexual violence is in prison for that act and is set to be released within 90 days. In this type of case, a parent may request an injunction on behalf of their child if the victim is the child.

Dating Violence Restraining Order

In order to request an Injunction against dating violence, the relationship must:

  • Have been in existence for at least six months prior to the request for the injunction,
  • Have an expectation of continued affection or sexual involvement, and
  • There must have been frequent and continuous interaction between the persons during the length of the relationship.

If all three of those factors exist and there was violence between the two people, then a petitioner may apply for the injunction under this section. This does not apply to casual relationships or violence between people who only have “ordinary fraternization in a business or social context.” In normal human words, that means that, in this type of injunction, the Court will not consider granting an injunction for the fight that someone got into at a bar or the casual intimate relationship that ended with some form of non-sexual violence. There may be criminal charges pending for those events, but the Courts try to limit the injunctions to those more personal and potentially explosive relationships.

Repeat Violence Restraining Order

In the event that the relationship does not fit into any of the other three categories, the Courts will consider one other type of injunction. But, in those situations, there must have been at least two (2) events of physical violence, threats, stalking, etc, and at least one of those events must have occurred within the last 6 months.  This type of injunction is not limited by the relationship, only the events, so a neighbor, co-worker, acquaintance, etc. can be subject to such an injunction if their behavior meets the test.

Stalking Restraining Order

Stalking is a willful, malicious, and repeated course of conduct that is intended to harass another person, and the laws of Florida allow for a person to ask for an injunction based on someone’s behavior that meets the definition of stalking, even if no relationship exists that would meet the criteria of the other injunctions listed above.

How to File an Injunction in Florida

In order to obtain an injunction, a Petitioner must appear at the Clerk’s Office, which is normally located at the Courthouse (most Clerk’s Offices have a specific office dedicated to injunctions). The Petitioner must fill out a form and swear to the facts, alleging not only the relationship but also the facts that would require an order or protection from the Court. In MOST circumstances, the Court will grant a temporary injunction right away and the regular injunction is normally signed within a few hours of the application, then set for a hearing in a few days to allow both sides to appear and offer their version of the events so that the Court can make a final decision.

The Respondent must be served with a copy of the petition. If that has not occurred, the hearing can be continued. If the Petitioner does not appear at the hearing, the Court will normally dismiss the petition. If the Respondent does not appear after being served with a copy of the petition, the Court will normally grant the injunction.

The Court has the option of making the injunction end on a certain date (such as a year from the date it was issued) or it can be permanent. However, unlike other Court orders, a Petitioner has the ability to request that the injunction be dismissed or dissolved at any time, and Florida case law indicates that upon such a request, the Court is required to dismiss the injunction.

You’ve been served with an injunction. Now what?

Ignoring the injunction will not make it go away and you could face criminal charges if you violate an injunction.  It is often the case that someone charged with a crime involving violence—especially in a domestic situation—will also be served with an injunction.  That civil case often provides an opportunity for our attorneys to review the evidence and allegations in the case before the criminal case proceeds, and it is an opportunity to get sworn testimony about the allegations.

What are the ramification of an injunction? Is it that big of a deal?

YES!

Both Federal and Florida laws state that if a final injunction is entered, you will not be legally allowed to possess or purchase any firearms or ammunition, and it is very common for the Court to require that you turn over any firearms that are in your possession when a temporary injunction is entered.

Any contact with law enforcement will also show that you have an injunction entered against you, and—once that injunction is in place—you face additional criminal penalties if you make contact with the person or return to the property, EVEN if they want you to or invite you there.

Do I really need an attorney for a restraining order?

It is not a legal requirement that you have an attorney represent you at an injunction hearing.  However, you may not know if the person seeking the injunction will have an attorney and, while the Court will treat you fairly, they will follow the law and you will be expected to know the rules of the Court and the law that applies to injunctions at the hearing.

I don’t know about you, but if my appendix burst, I would not try to remove it myself. Having an experienced attorney at your side may be the difference between a dismissal and a permanent injunction. If you’ve been served with a petition for an injunction against you, contact one of our attorneys right away at 386-222-6677 to set up a free consultation to discuss your injunction and let us help you.

Free Consultation Start Your Case Online
386.222.6677