I am often questioned about the process involved in obtaining a “restraining order.” Many people believe that such an Order can be obtained if a husband and wife get into a verbal argument or if someone is harassing them. This is not true and Florida law is very specific as to the requirements needed to seek such an order.
First of all there is in fact really no such legal document as a “restraining order”. The Order that can be obtained is called an Injunction for Protection Against Domestic Violence. As the title suggests, this order is to protect someone from domestic violence which is defined as any criminal offense resulting in physical injury or death of one family or household member by another family or household member. The statute goes on to further explain that anyone who is either the victim of domestic violence or has reasonable cause to believe he or she is in imminent danger of becoming the victim of any act of domestic violence has standing to seek an injunction.
The basis for such an injunction therefore must be based upon either acts of violence or acts which would result in the other party having a reasonable belief that there was imminent danger of such violence. Conversely, injunctions will not be issued based upon harassment or threats which do not prove to result in imminent fear of harm.
To obtain the Injunction a sworn affidavit must be filed and presented to a judge. If the Judge feels that the evidence is sufficient, a Temporary Injunction will be issued. This will usually require the Respondent (the person who has the injunction issued against him/her) to vacate the marital residence and to have no contact, direct or indirect, with the complaining party. A hearing will then be held within 15 days, giving both parties the opportunity to present their case to a judge. At that hearing either party can be represented by an attorney. The Judge will then determine if the Injunction shall remain in effect or whether it shall be dismissed. Injunctions can remain in effect for a certain period of time or indefinitely. The Injunction can also be modified allowing minimal contact to discuss issues such as child visitation.
The purpose of this Injunction is to offer protection to someone who has been the victim of domestic violence or has a reasonable fear to believe that he/she will be a victim. Unfortunately, it is sometimes abused by individuals who use it as a means to “get back” or punish their spouse. I often say that the Injunction is to be used as a shield, to protect an individual, and not as a sword to harm someone. The Petition seeking the Injunction is sworn to by the applicant as being true. It is unlawful to lie under oath.
Nobody should allow themselves to be a victim of domestic violence. If you are, the law exists for your protection.