What is a Domestic Violence Injunction?

In Florida, a domestic violence injunction is a court directive prohibiting or compelling the actions of one ‘family or household member’ in order to protect another ‘family or household member’ from domestic violence or the imminent threat of domestic violence. § 741.30, Florida Statutes.

Who Can Pursue a Domestic Injunction?

Under § 741.30, a person has legal standing to pursue a domestic injunction if:

(1) He or she is a family or household member of the respondent. Alcon v. Collins, 334 So. 3d 717, 719 (Fla. 1st DCA 2022); and
(2) He or she has been a victim of domestic violence or has reasonable cause to believe he or she is in imminent danger of becoming a victim of domestic violence. See § 741.30(1)(a).

What is a Family or Household Member?

Any “family or household member” who is a victim of domestic violence or in imminent danger of such violence has standing to pursue injunctive relief against an offending family or household member. § 741.30(1)(e).

§ 741.28, Florida Statutes, defines “family or household member to include:

  • spouses;
  • former spouses;
  • persons related by blood or marriage;
  • persons who are presently residing together as if a family or who have resided together in the past as if a family; and
  • persons who are parents of a child in common (regardless of whether they have been married).

Individuals with children in common are included in the definition of ‘family or household member” even if they never resided with the other person. § 741.28(3)

Minor Children- A parent or legal guardian has legal standing to file a petition for injunction on behalf of a child where the child is a victim of domestic violence or is in imminent danger of becoming a victim. Caldwell v. Caldwell ex rel K.C., 257 So. 3d 1184, 1186 (Fla. 5th DCA 2018); Parrish v. Price, 71 So. 3d 132 (Fla. 2d DCA 2011); G.C. v. R.S., 71 So.3d 164, 166 (Fla. 1st DCA 2011); Sager v. Holgren, 250 So.3d 793, 794 (Fla. 1st DCA 2018).

What is Domestic Violence?

Under § 741.28, Florida Statutes, “domestic violence” means any:

  • assault or aggravated assault;
  • battery or aggravated battery;
  • sexual assault or sexual battery;
  • stalking or aggravated stalking;
  • kidnapping or false imprisonment; and
  • any other criminal offense resulting in physical injury or death of one “family or household member” by another family or household member.

What is ‘Imminent Danger’ of Domestic Violence?

In addition to actual violence, a domestic injunction may be sought by a family or household member where the petitioner has “reasonable cause to believe he or she is in danger of becoming a victim of domestic violence.” § 741.28(6)(b).

Under § 741.30(6)(b), a court must assess “reasonable cause,” on the basis of the following factors:

  • The history of threats, harassment, stalking and abuse between the petitioner and the respondent;
  • Specific attempts at harming the Petitioner or family members or associates of the petitioner;
  • Threats to conceal, kidnap, or harm the petitioner’s child or children;
  • Intentional actions that injured or killed a family pet;
  • Use or threatened use of weapons, such as guns or knives;
  • Acts designed to prevent the petitioner from leaving the home or calling law enforcement;
  • Criminal history of the respondent, including acts of violence or threats of violence;
  • Injunctions entered against the respondent in other jurisdictions;
  • Acts by the respondent resulting in the destruction of property, including telephones or other communications equipment, clothing, or other items;
  • Any other behavior or conduct supporting a reasonable belief by the respondent that he or she is in imminent danger of becoming a victim of domestic violence.

Imminent Danger Based on Objective Standard– A trial court’s assessment of “imminent danger” must be based on a standard of “objective reasonableness,” and not on a petitioner’s subjective fears.  Tate v. Tate, 262 So. 3d 221, 222-23 (Fla. 2d DCA 2018); Randolph v. Rich, 58 So. 3d 290, 291 (Fla. 1st DCA 2011); Leal v. Rodriguez, 220 So.3d 543 (Fla. 3d DCA 2017); Zarudny v. Zarudny, 241 So. 3d 258, 262 (Fla. 3d DCA 2018)

Actual Violence or Imminent Danger Sufficient– § 741.30 does not require that the petitioner be both a victim of domestic violence and in imminent danger of future violence. Meeting either standard entitles the petitioner to pursue relief. Caddy v. Robinson, 323 So. 3d 749, 752 (Fla. 4th DCA 2021) (stating that, “where the court finds that a petitioner is in fact the victim of DV, it does not need to find that she is also in imminent fear”).

Powers of the Court

Upon entry of a domestic violence injunction, § 741.30(6)(a) authorizes the trial court to enter orders:

  1. Prohibiting the respondent from committing any acts of domestic violence;
  2. Awarding exclusive use and possession of the home to the petitioner;
  3. Providing the petitioner with 100 percent of the time-sharing in a temporary parenting plan;
  4. Establishing temporary support for a minor child or children or the petitioner;
  5. Ordering the respondent to participate in treatment, intervention, or counseling services to be paid for by the respondent. This is includes the Batterer’s Intervention Program (BIP);
  6. Referring a petitioner to a certified domestic violence center;
  7. Awarding to the petitioner the exclusive care, possession, or control of any animals or pets;
  8. Granting any other relief necessary for the protection of a victim of domestic violence;

Pleading Requirements for Domestic Injunctions

A petition for injunction must meet basic pleading requirements of specificity and notice in order to comply with Due Process.

§ 741.30(3)(a), further provides that “the sworn petition must allege the existence of such domestic violence and must include the specific facts and circumstances upon the basis of which relief is sought” (emphasis added).

At a minimum, the petition for an injunction must comport with “due process, including the right to proper and adequate notice of the allegations” that are the subject of the petition and eventual hearing. Sanchez v. Marin, 138 So.3d 1165 (Fla. 3d DCA 2014).

Domestic Injunction Hearings

The legal requirements for injunction hearings are commonly misunderstood or neglected by circuit judges throughout the State of Florida.

Full Evidentiary Hearing Required

A respondent in a domestic injunction case is entitled to a full evidentiary hearing prior to the issuance of any permanent injunction. Semple vs. Semple, 763 So. 2d 484, 485 (Fla. 4th DCA 2000); Lewis v. Lewis, 689 So. 2d 1271, 1273 (Fla. 1st DCA 1997). An evidentiary hearing is required by both § 741.30 and constitutional principles of due process. Wooten v. Jackson, 812 So. 2d 609 (Fla. 1st DCA 2002).

An evidentiary hearing entails the presentation of testimony and other admissible evidence relevant to the case at hand. Lewis, 689 So. 2d at 1273. This includes the opportunity of the respondent to be heard, to give testimony, and call witnesses on his or her behalf. Pope v. Pope, 901 So. 2d 352 (Fla. 1st DCA 2005). The court must provide a respondent with the opportunity to show that the allegations are not true. Utley v. Baez-Camacho, 743 So. 2d 613, 614 (Fla 5th DCA 1999).

Limitations on Evidence Presented

Although a court may reasonably regulate the amount of testimony and amount of time necessary to be utilized in deciding a case, it may not prohibit relevant witnesses from testifying or bar cross-examination of witnesses.

  • See: Lewis, 689 So. 2d at 1273; Adili v. Adili, 913 So. 2d 1240, 1240–41 (Fla. 4th DCA 2005) (reversing domestic violence injunction where the court heard only from the wife and her witnesses and ruled in the wife’s favor before allowing the husband to present any witnesses or evidence); Pope v. Pope, 901 So.2d 352, 353 (Fla. 1st DCA 2005) (same); Miller v. Miller, 691 So.2d 528, 529 (Fla. 4th DCA 1997) (same); In re A.B., 186 So. 3d 544, 550 (Fla. 2d DCA 2015) (observing that “[a]ll witnesses should be sworn, each party should be permitted to call witnesses with relevant information, and cross-examination should be permitted”).

Rules of Evidence Applicable

The Florida Evidence Code is fully applicable to hearings on a final judgment for injunction.

  • See: De Hoyos v. Bauerfeind, 286 So. 3d 900 (Fla. 5th DCA 2019) (reversing a final judgment of injunction due to the trial court’s failure to properly apply the child hearsay exception pursuant to § 90.803(23)); Leaphart v. James, 185 So. 3d 683 (Fla. 2d DCA 2016) (reversing a trial court, in part, due to its failure to apply hearsay rules under §§ 90.801-802 of the Florida Evidence Code); Sanchez v. Sanchez, 48 So. 3d 199, 200 (Fla. 2d DCA 2010)(applying hearsay rules to reverse injunction); Achurra v. Achurra, 80 So. 3d 1080, 1082-83 (reversing judgment of injunction where a trial court based on evidence not properly admitted into the record).

Scope of Hearing Subject Matter

During the evidentiary hearing on a petition for injunction, a trial court may not consider evidence offered to prove allegations that were not contained in the petition. De Leon v. Collazo, 178 So. 3d 906, 908 (Fla. 3d DCA 2015) (citing Sanchez v. Marin, 138 So. 3d 1165 (Fla. 3d DCA 2014).

Admitting evidence related to unpled allegations violates procedural due process requirements of notice and a full and fair opportunity to prepare and respond at a hearing. Collazo, 178 So. 3d at 908-909.

Burden of Proof

The petitioner has the initial burden to prove entitlement to relief. In re A.B., 186 So. 3d 544, 548 (Fla. 2d DCA 2015); Achurra v. Achurra, 80 So. 3d 1080, 1082 (Fla. 1st DCA 2012); Ambrefe v. Ambrefe, 993 So. 2d 98, 98–99 (Fla. 2d DCA 2008) (applying burden of proof to injunction petitioner).

Standard of Proof

In Florida, a petitioner for an injunction must establish by “preponderance of the evidence” (i.e. greater weight of the evidence) that he or she is either a victim of domestic violence or is in imminent danger of being a victim of domestic violence.

Where a petitioner fails to meet his or her standard of proof, the petition for injunction must be dismissed. In re A.B., 186 So. 3d at 548 (citing Goudy v. Duquette, 112 So. 3d 716, 718 (Fla. 2d DCA 2013)).

Sua Sponte Orders for Unrequested Relief

An injunction court may not enter orders concerning matters that were not requested by the petitioning party.

  • See: Hunter v. Booker, 133 So. 3d 623, 628 (Fla. 1st DCA 2014) (stating that “an order adjudicating an issue not presented by the parties or the pleadings denies due process, and therefore, departs from the essential requirements of law”); Blackwood v. Anderson, 664 So. 2d 37, 38 (Fla. 5th DCA 1995) (reversing an injunction court award of child custody to the father where the father did not properly plead custody and mother was not sufficiently noticed on custody issue).

Timing of Hearing

If a temporary injunction has been entered (see discussion below), the hearing must be set no later than 15 days from entry of the temporary order. Lewis, 689 So. 2d at 1273.

If a temporary injunction was denied on the sole basis that there was “no appearance of an immediate and present danger of domestic violence,” the court must set a full hearing “at the earliest possible date.” § 741.30(5)(b).

Granting Injunctions Based Solely Upon Petitioner Testimony

A Petitioner’s testimony alone, if deemed credible and otherwise admissible, is sufficient to support the issuance of a final injunction. Jeffries v. Jeffries, 133 So. 3d 1243, 1244 (Fla. 1st DCA 2014) (affirming judgment of injunction based solely on the petitioner’s testimony, which the trial court properly deemed more credible); Abravaya v. Gonzalez, 734 So. 2d 577, 578 (Fla. 3d DCA 1999).

Case Examples: Inadequate Proof

The following Florida appellate cases provide examples of where proof offered at an injunction hearing was deemed insufficient to grant injunctive relief.

  • Tate v. Tate, 262 So. 3d 221, 223 (Fla. 2d DCA 2018) (finding insufficient evidence of imminent domestic violence where the respondent had broken into the petitioner’s home to steal their previously shared cats, and had done so through non-forceful entry);
  • Moore v. Hall, 786 So. 2d 1264, 1267 (Fla. 2d DCA 2001) (concluding that allegations that the husband committed acts abuse twelve years prior, and made comments to the process server during a divorce proceeding about what he “should have done” to his wife, were insufficient to establish an objectively reasonable fear of imminent domestic violence;
  • Randolph v. Rich, 58 So. 3d 290, 291-92 (Fla. 1st DCA 2011) (finding that non-specific allegations of past abuse, coupled with allegedly harassing contacts and a statement that the respondent would “get her” [the petitioner], were insufficient to establish an objectively reasonable fear of imminent domestic violence);
  • Young v. Smith, 901 So. 2d 372 (Fla. 2d DCA 2005) (evidence insufficient to support a final judgment of injunction where respondent made threats of self-harm, engaged in allegedly harassing telephone calls, the parties had frequent heated arguments, and where the petitioner, without personal observation, accused the respondent of breaking a window in the home);
  • Leal v. Rodriguez, 220 So. 3d 543, 545 (Fla. 3d DCA 2017) (stating that “general harassment, general relationship problems, and uncivil behavior” are insufficient to support a final injunction for domestic violence);
  • Phillips v. Phillips, 151 So. 3d 58, 59 (Fla. 2d DCA 2014) (finding evidence legally insufficient to support a domestic violence injunction where, despite the allegations in her petition, the wife acknowledged in her testimony that there had been no violence or threats of violence from the husband since their separation four months before filing the injunction);
  • Selph v. Selph, 144 So. 3d 676 (Fla. 4th DCA 2014) (evidence insufficient where the wife’s allegation that the husband ordered his dog to attack her was based on an incident which occurred five months prior, and where there was no medical or police reports, and the parties had not been in contact with each other during the three months before the filing of the petition);
  • Chiscul v. Hernandez, 311 So. 3d 55, 58-59 (Fla. 4th DCA 2021) (finding evidence of “imminent danger” insufficient where testimony established that the parties had been separated for months with almost no contact, and where the only allegation of physical contact was minor and isolated);
  • Oettmeier v. Oettmeier, 960 So. 2d 902, 904 (Fla. 2d DCA 2007) (reversing domestic violence injunction where evidence merely “painted … a typical, albeit unfortunate, picture of a domestic relationship gone awry”);
  • Bacchus v. Bacchus, 108 So. 3d 712, 715 (Fla. 5th DCA 2013) (evidence that husband had communicated with the wife through third parties is not enough, standing alone, to show a reasonable fear of continuing violence, particularly when the subject of the communications is reconciliation);
  • Gustafson v. Mauck, 743 So.2d 614, 616 (Fla. 1st DCA 1999) (holding that telephone calls to petitioner from former boyfriend failed to justify reasonable fear of imminent danger of becoming victim of domestic violence, despite parties’ history, when calls ceased at petitioner’s request);
  • Giallanza v. Giallanza, 787 So. 2d 162, 164-65 (Fla. 2d DCA 2001) (stating that indirect harassment of wife by husband, such as by making unfounded calls to HRS and false reports to sheriff’s office, would not support finding of objectively reasonable fear of imminent danger of domestic violence so as to support the extension of an injunction);
  • Kopelovich v. Kopelovich, 793 So. 2d 31, 33 (Fla. 2d DCA 2001) (holding that threats of harm to the wife in court to destroy her financially were not sufficient to establish an objectively reasonable fear of domestic violence);
  • Quinones-Dones v. Mascola, 290 So. 3d 1029, 1030-31 (Fla. 5th DCA 2020) (reversing final judgment of inunction where the acts of alleged violence occurred eight or nine years prior, and the respondent’s recent conduct was limited to harassing text messages and demands regarding the children);
  • Gill v. Gill, 50 So. 3d 772 (Fla. 2d DCA 2010) (reversing final judgment of injunction where the petitioner’s testimony was that the husband had allegedly shoved her over a year prior and recently engaged in a “yelling match” with the petitioner from his car);
  • Jones v. Jones, 32 So. 3d 772, 774-76 (Fla. 2d DCA 2010) (finding that a pushing incident that occurred three years before the injunction was filed was not sufficient to support the issuance of an injunction against domestic violence).

Support and Child Custody

The trial court’s domestic injunction powers include the ability to adjudicate matters related to child custody, parenting plans, and family financial support.

  • See: § 741.30(5)(a)(3)-(4) (temporary injunctions) and § 741.30(6)(a)(3)-(4) (final injunctions); § 741.2902(2)(e) (providing legislative intent that, in issuing a domestic violence injunction, a court shall, inter alia, “[c]onsider supervised visitation, withholding visitation, or other arrangements for visitation that will best protect the child and petitioner from harm”).

Purpose of Custody and Support Orders

A temporary parenting plan is authorized only if the court is actually issuing an injunction (temporary or final) and the order is intended to protect the petitioner and the child from harm. Hunter v. Booker, 133 So. 3d 623, 627 (Fla. 1st DCA 2014).

Chapter 61 Mandatory Findings

Where the court finds it appropriate to establish such a temporary parenting plan, it must do so “on the same basis” provided in Chapter 61, Florida Statutes. § 741.30(5)(a)(3)-(4) (temporary injunctions) and § 741.30(6)(a)(3)-(4) (final injunctions).

§ 61.13(3) requires the trial court, when creating a parenting plan or imposing a time-sharing schedule, to give primary consideration to the “best interests of the child.” The best interest is determined by evaluating the more than twenty factors outlined in § 61.13(3)(a)-(t). Booker, 133 So. 2d at 627.

Sua Sponte Awards of Custody and Support

An injunction court may not enter orders establishing a parenting plan, timesharing, or family support where those issues are not requested or otherwise raised in the Petition.

  • See: Booker, 133 So. 3d at 628 (stating that “an order adjudicating an issue not presented by the parties or the pleadings denies due process, and therefore, departs from the essential requirements of law”); Blackwood v. Anderson, 664 So. 2d 37, 38 (Fla. 5th DCA 1995) (quashing order awarding father custody of children after mother failed to appear at hearing on her injunction petition, because father did not properly plead custody and mother was not sufficiently noticed on custody issue).

Duration of Custody and Support Orders

A parenting plan or support order entered by a Florida injunction court remains in effect until until the order expires or a contrary order is entered by a family law court having jurisdiction over the parties. Caddy v. Robinson, 323 So. 3d 749, 752-53 (Fla. 4th DCA 2021) (citing § 741.30(6(a)(3), Florida Statutes).

Since the abbreviated nature of domestic injunction proceedings “should not become the primary forum in which to determine family law issues,” at least two Florida appellate courts have opined that the “better practice in such a case would be for the trial court to enter a temporary order . . . and direct the parties to litigate their subsequent custody and visitation disputes in a proper [family court] proceeding . . .” Robinson, 323 So. 3d at 752-53 (quoting O’Neill v. Stone, 721 So. 2d 393, 396 (Fla. 2d DCA 1998).

Dissolving or Modifying a Final Judgment of Injunction

A final injunction entered pursuant to § 741.30 remains in place “indefinitely,” unless modified or dissolved. Bacchus v. Bacchus, 108 So. 3d 712, 713-14 (Fla. 5th DCA 2013) (citing Cox v. Deacon,82 So. 3d 827, 827 (Fla. 4th DCA 2011)).

However, either party may move at any time to modify or dissolve an injunction. Caddy v. Robinson, 323 So. 3d 749, 752 (Fla. 4th DCA 2021).

Motion Requirements

A motion to modify or dissolve is facially sufficient if it alleges facts demonstrating a change of circumstances. Bork v. Pare, 252 So. 3d 394, 395 (Fla. 2d DCA 2018) (citing Carrozza v. Stowers, 153 So. 3d 340 (Fla. 2d DCA 2014)); Spaulding v. Shane, 150 So. 3d 852, 853 (Fla. 2d DCA 2014)).

If the motion is facially sufficient, the movant is accordingly entitled to receive a hearing on the motion. Pare, 252 So. 3d at 395 (citations omitted).

Respondent’s Burden

Where the respondent seeks to modify or dissolve a domestic injunction, he or she must establish “changed circumstances” rendering modification or dissolution as an appropriate equitable remedy.

Changed circumstances include scenarios where the basis for the original injunction no longer exists, and thus where the injunction no longer serves a valid purpose. Bush v. Henney, 175 So. 3d 930, 930–31 (Fla. 4th DCA 2015).

Petitioner’s Burden

Where the original petitioner seeks to extend a domestic injunction, he or she must present evidence that additional domestic violence has occurred or that a continuing and objectively reasonable fear of imminent domestic violence exists. Sheehan v. Sheehan, 853 So. 2d 523, 525 (Fla. 5th DCA 2003); Giallanza v. Giallanza, 787 So. 2d 162 (Fla. 2d DCA 2001).

Trial Court Discretion Not Unlimited

As a general principle, trial courts have broad discretion in granting, denying, dissolving, or modifying injunctions. Hobbs v. Hobbs, 290 So. 3d 1092, 1094 (Fla. 1st DCA 2020).

This discretion is not unlimited, however, where the moving party establishes that the circumstances forming the basis for the original injunction no longer exist, and that the injunction no longer serves a valid purpose. Alkhoury v. Alkhoury, 54 So. 3d 641, 642 (Fla. 1st DCA 2011).

To determine whether a valid purpose exists, the trial court must consider whether the victim is a continuing victim of domestic violence or “reasonably maintains a continuing fear of becoming a victim of domestic violence.” Hobbs, 290 So.3d at 1094.

Denying a motion to dissolve or modify an injunction based solely on incidents that occurred years prior or based on “speculative fear of future violence” is subject to reversal.

  • See: Hobbs, 290 So. 3d at 1095 (reversing order denying motion to dissolve where acts of alleged violence occurred years prior, where the parties resided far away from one another, and where the children had reached the age of majority); Trice v. Trice, 267 So. 3d 496, 500-502 (stating that “speculative fear” of future violence “cannot be enough to justify the never-ending existence of an injunction.”).

Subjective fears by the original petitioner and the mere possibility of future contact between the parties are also legally insufficient to maintain a permanent injunction. Hobbs, 290 So. 3d at 1095-96.

Contact an Attorney

If you have been served with a domestic injunction petition, or seek to file a petition for protection, contact the attorneys at Hussein & Webber, PL for a free consultation.