Marc A. Tenney, P.A.
Attorney At Law
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DOMESTIC VIOLENCE
Domestic Violence
As referenced in the heading, the terms domestic violence injunction and restraining order are interchangeable. Pursuant to Section 741.28(2), FLA.STAT. (2012), domestic violence is defined as "...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..".
Many people do not understand that a DOMESTIC VIOLENCE INJUNCTION (DVI) initially is a civil action. A violation of a DVI can become criminal in nature. Often, a domestic violence action is preceded by the intervention of a police agency/entity. In the past, the police often would attempt to calm down a domestic situation at a residence and ask one party to voluntarily leave. More recently, considering the strong possibility of physical harm involved with a domestic violence incident, including on occasion to the investigating police officer(s), now, more often than not, when the police are called to such a disturbance, someone is arrested.
As a result of an initial arrest for some form of domestic battery, a "NO CONTACT" order is usually entered by the presiding criminal court judge. Often, the victim of domestic violence is not aware that if the State Attorney's Office ultimately determines there is not probable cause to file a formal criminal information for some form of domestic battery, the criminal "NO CONTACT" order is dissolved. As a result thereof, it is important that a victim of domestic violence promptly file a civil PETITION FOR DOMESTIC VIOLENCE PROTECTION (PETITION).
The individual filing said PETITION is known as the Petitioner and the party alleged to have committed domestic violence is the Respondent. Even though an attorney is typically not involved during the initial filing of said PETITION, it is vital that the PETITIONER initially confer with legal counsel so the process can be completely explained. Either party to a domestic violence action needs to be fully aware, among other factors, that the victim's fear of imminent domestic violence must be reasonable. In addition, the trial court must consider the current allegations of the PETITION, the parties' behavior within the relationship and the history of the relationship as a whole. For example, an isolated incident of domestic violence that occurred years before the filing of the PETITION is insufficient.
After the DVI process is thoroughly explained to the victim, he/she will then be able to appropriately prepare and file a PETITION for review by an assigned judge. The PETITIONER does not provide any direct testimony to the court after filing the PETITION. The Judge, after review of the PETITION determines whether there is sufficient cause for entry of a TEMPORARY DVI, or if the request for the TEMPORARY DVI should be denied. As a third option, the court can neither grant or dent the PETITION but schedule a hearing at which both parties can appear and present testimony plus evidence to the court.
If the TEMPORARY DVI is enter, the Respondent is entitled to his/her day in court within 15 days which is commonly known as a "RETURN HEARING". In my professional opinion, it is most helpful for both parties to have representation at the "RETURN HEARING". This hearing will be the first opportunity for the presiding judge to listen to direct testimony of the parties, their witnesses, if any, observe everyone's demeanor and make an appropriate judicial determination whether the issuance of a PERMANENT DVI is appropriate. Even though the term PERMANENT DVI is used, a permanent injunction can often be for only a limited period of time, such as 3 months. As a more recent judicial trend, only in the rarest of cases now is a DVI made indefinite. At any time after entry of a PERMANENT DVI, the Petitioner or Respondent may file a MOTION with the Court seeking to modify or dissolve the DVI.
As referenced above, both a Petitioner and Respondent should have legal representation at the "RETURN HEARING". The effect of a permanent DVI can cause substantial harm to a Respondent in various ways, including placing them in a defensive position in a possible divorce or paternity action. A permanent DVI can cause loss of employment or inability to obtain future employment since employers now routinely perform thorough civil and criminal records searches of prospective or current employees.
Quite often, a domestic violence action and eventual DVI can become part of or provide the impetuous to a litigant to file a divorce or paternity action. It is thus extremely important for litigants to be properly advised as to the legal relationship and ramifications regarding DVI and divorce or paternity actions.
I have extensive experience and expertise in assisting clients in both prosecuting or defending domestic violence, divorce and paternity actions. It would be my pleasure to zealously assist you in these matters.
The individual filing said PETITION is known as the Petitioner and the party alleged to have committed domestic violence is the Respondent. Even though an attorney is typically not involved during the initial filing of said PETITION, it is vital that the PETITIONER initially confer with legal counsel so the process can be completely explained. Either party to a domestic violence action needs to be fully aware, among other factors, that the victim's fear of imminent domestic violence must be reasonable. In addition, the trial court must consider the current allegations of the PETITION, the parties' behavior within the relationship and the history of the relationship as a whole. For example, an isolated incident of domestic violence that occurred years before the filing of the PETITION is insufficient.
After the DVI process is thoroughly explained to the victim, he/she will then be able to appropriately prepare and file a PETITION for review by an assigned judge. The PETITIONER does not provide any direct testimony to the court after filing the PETITION. The Judge, after review of the PETITION determines whether there is sufficient cause for entry of a TEMPORARY DVI, or if the request for the TEMPORARY DVI should be denied. As a third option, the court can neither grant or dent the PETITION but schedule a hearing at which both parties can appear and present testimony plus evidence to the court.
If the TEMPORARY DVI is enter, the Respondent is entitled to his/her day in court within 15 days which is commonly known as a "RETURN HEARING". In my professional opinion, it is most helpful for both parties to have representation at the "RETURN HEARING". This hearing will be the first opportunity for the presiding judge to listen to direct testimony of the parties, their witnesses, if any, observe everyone's demeanor and make an appropriate judicial determination whether the issuance of a PERMANENT DVI is appropriate. Even though the term PERMANENT DVI is used, a permanent injunction can often be for only a limited period of time, such as 3 months. As a more recent judicial trend, only in the rarest of cases now is a DVI made indefinite. At any time after entry of a PERMANENT DVI, the Petitioner or Respondent may file a MOTION with the Court seeking to modify or dissolve the DVI.
As referenced above, both a Petitioner and Respondent should have legal representation at the "RETURN HEARING". The effect of a permanent DVI can cause substantial harm to a Respondent in various ways, including placing them in a defensive position in a possible divorce or paternity action. A permanent DVI can cause loss of employment or inability to obtain future employment since employers now routinely perform thorough civil and criminal records searches of prospective or current employees.
Quite often, a domestic violence action and eventual DVI can become part of or provide the impetuous to a litigant to file a divorce or paternity action. It is thus extremely important for litigants to be properly advised as to the legal relationship and ramifications regarding DVI and divorce or paternity actions.
I have extensive experience and expertise in assisting clients in both prosecuting or defending domestic violence, divorce and paternity actions. It would be my pleasure to zealously assist you in these matters.
My law practice is conveniently located at 7011 Central Avenue, Suite B, St. Petersburg, Florida. For a free initial consultation, please call my office at 727-321-5370