What is an injunction?
Injunctions—as they are referred to in Florida—or restraining orders, are issued by the court to protect an individual against potential violence. Injunctions can arise from family/domestic or criminal situations. Therefore, family lawyers and criminal defense lawyers should be familiar with the injunction process and its unique quirks.
Florida law has created several types of injunctions based on the relationship between the person seeking the injunction (the petitioner) and the person against who the injunction is sought (the respondent). For example, a petitioner may seek a domestic violence injunction against someone he or she has a child with, even if they live many states apart. A petitioner may be a neighbor or co-worker who is seeking an injunction for protection against repeat violence. There are also injunctions for dating violence, sexual violence, and stalking.
What are the effects of an injunction?
There is no fee for the petitioner to seek an injunction. The standard by which courts grant injunctions is surprisingly low in many cases. Regardless, there are a number and variety of consequences that can seriously impact the respondent. Injunctions can:
- transfer ownership of a home or prohibit access a shared residence,
- separate children from parents,
- impose some significant child support obligations,
- impact the right to keep and bear arms,
- lead to jail time if violated.
Protecting these important rights is difficult enough. It is even more difficult if the respondent is facing criminal charges as well. Most injunctions are unnecessary if the criminal process is already underway. Standard conditions in pre-trial release orders include “no contact” with the alleged victim of any offense. However, law enforcement is required to provide Florida victims’ rights brochures to complainants at the scene of an arrest which outline the process for obtaining an injunction.
Many victims go to the clerk’s office the following day seeking injunctive relief. This can confound the situation for the respondent who may be incarcerated or in the process of bonding out of jail at the same time a “separate” civil proceeding is undertaken. It could significantly trample his rights prior to any criminal discovery, much less a trial.
What is involved when someone files an injunction?
There are numerous issues that can affect the outcome of an injunction hearing:
- Procedural: which includes the type of injunction, burden of persuasion, standard of proof, evidence available;
- Tactical: which includes the nature of criminal investigation, whether to announce appearance, desire to act quickly or over a prolonged period, the existence of an earlier-filed paternity or dissolution case.
- Nature of the hearing: The hearings are often very informal, even though the respondent’s constitutional rights are at stake. Although, the evidence code and rules of evidence are supposed to apply. anyone who has spent more than a few minutes in “love court” will quickly be able to tell you that formal presentation of (and limitation of) evidence is a rare occurrence. Petitioners (women) who allege abuse are frequently represented by counsel paid for via federal grant money. There is no similar provision for respondents who frequently appear without a lawyer and talk their way into criminal charges along with the loss of their rights regarding firearms and contact with their own children.
- Timeline: Injunctions, by statutory design, are presumed to move quickly. Normally respondents are served with temporary injunction paperwork which includes a notice of hearing for a “final injunction hearing” which is scheduled within 15 days. Respondents often find themselves with a criminal charge hanging over their heads and a very short time to coordinate a response.
Is a lawyer necessary?
The consequences of having an injunction filed against you can be devastating. The process of the injunction hearing is extremely complicated. For these reasons it is always shocking to see the number of respondents who appear at injunction court unrepresented.
Among the logistical issues is that if a criminal case is pending, there may be reason to either speed up or slow down the injunction process. In some injunction cases, it is important for counsel to immediately announce that he is representing the respondent in the injunction cause. Often the opposite is true; counsel will file no formal notice of appearance until he appears at the injunction hearing.
Proceeding in the injunction case can materially assist a criminal defendant’s investigation in some cases. In other cases, the injunction action is necessarily toxic to the criminal investigation and counsel will advise the respondent to not appear in injunction court.
If someone is seeking an injunction against you – various rights are in immediate peril. I urge you to consult with and retain competent counsel prior to proceeding to any hearing. Competent counsel means an attorney who is familiar with the injunction process and, if applicable, the criminal process as well. The absolute worst thing you could do is to walk into court and start talking.