This blog explores the obstacles and pitfalls you can expect in a final hearing for a Domestic Violence injunction for protection, also known as a restraining order. After reading this, you should be able to answer the question: Do I need an attorney?
What to Expect at an Injunction Hearing Florida
If someone feels they have been the victim of Domestic Violence in Florida, that person can go to the courthouse and petition for a temporary injunction against Domestic Violence. Typically, the Clerk’s office will provide an advocate who will help you in filling out the application or petition. Once completed, a judge will review it and assume your allegations are true. If those allegations show that someone has been the victim of domestic violence or have reasonable cause to believe he or she is in imminent danger of becoming the victim of any act of domestic violence, the judge will issue a temporary injunction ordering that the alleged violator not have any contact with the alleged victim.
This temporary order will be served on the alleged violator, also called the Respondent. The Respondent will usually be ordered to stay 500 feet from the alleged victim, also known as the Petitioner. If the Respondent and the Petitioner live together, the Respondent will be forced to leave the residence in accordance with the order. Usually, the deputy who serves the order will give the Respondent about 10 minutes to gather his/her things and leave the property. Along with the order, the deputy will likely serve a Notice of Hearing. This final hearing will be set typically within a few weeks, and this hearing gives both parties the opportunity to make their case, and a judge will decide if the injunction will remain in place permanently. Keep in mind that the courts do not use the term permanently in the literal sense. Most often, these “permanent” injunctions may expire in one to two years. Very few are actually permanent.
Final Hearings for Domestic Violence Injunctions occur in a formal courtroom setting. Both Petitioner and the Respondent are called to come forward on different sides of the courtroom. Formal evidentiary rules do apply, so parties are not free to say just anything, or offer any evidence they choose. This makes a final hearing extremely intimidating and stressful to someone without legal training in the rules of evidence. This is especially true if the opposing party has hired an attorney who knows how to navigate the trial process. The common person is not aware of the legal definition of hearsay or when it can be admitted as evidence in the hearing. Each party can call witnesses, but exactly how to examine and cross-examine witnesses is a skill that most people do not possess without proper training.
During the hearing, the judge will look to the Petitioner to present their case first. This is because the Petitioner has the burden of proving the case to the judge. If the Petitioner has an attorney present, the attorney will carefully craft a case that asks the Petitioner questions, potentially call other witnesses, and possibly enter evidence to the court to review such as photographs or text messages. The Respondent will have the opportunity to cross-examine anyone who testifies. For instance, if the alleged victim testifies to the judge, she is then subjected to cross-examination from the Respondent. This is especially difficult for the Petitioner if the Respondent has an attorney, who is skilled in the art of cross-examination, which consists of a series of leading questions.
After the Petitioner rests their case, the Respondent will have the opportunity to present a case. The same rules apply for the Respondent. He or she can testify, call witnesses, and enter exhibits into evidence for the judge to review. This all must be done in accordance to evidentiary rules or the judge may rule your evidence inadmissible. Like the Respondent, the Petitioner can cross-examine all of the witnesses who testify for the Respondent. Cross-examination is a specialized skill that attorneys learn through years of studying and practice.
In some cases, the judge will allow both sides to make a closing argument once the Respondent’s case has been closed. In accordance to evidentiary rules, parties can only argue facts that were previously put into evidence. These presentations must be brief and concise since judges are very busy and likely have many other cases on their docket. After these arguments, if allowed, the judge will decide as to whether the Petitioner met his/her burden of proof, which in these hearings is “preponderance of the evidence” or weight of the evidence.
The judge’s order will either say “granted” or “denied.” If granted, the judge will issue terms of the order. These could include prohibiting the Respondent to having any contact with the petitioner, come within 500 feet of her residence or place of employment. This may even be true if the two parties share a residence. For instance, Bob invites Susan to live with him in his one-bedroom apartment, where only Bob is on the lease. Susan gets a Domestic Violence Injunction Order against Bob. Bob must move out of his own apartment for a time determined by the judge, regardless of his contractual situation with the apartment complex. If the Petitioner lists children in the petition, the order could mean that the Respondent may not have any contact with his/her kids. Any violation of the order becomes a criminal offense prosecuted by the State Attorney’s Office and carries up to one year in jail. If the petition is denied, the Petitioner may be forced to go back to the place where their alleged abuser lives, because the temporary injunction immediately ceases and the petitioner has no protection.
Now ask the question: Do I need an attorney for a domestic violence injunction hearing?