There is an area of law that has become more prevalent in recent years. For attorneys who practice in both civil and criminal, this area may feel like it falls somewhere between the two: injunctions (a.k.a. restraining orders, a.k.a. protection orders). They are civil by law, but feel criminal by operation/effect – especially in this day of transparency and information availability. This article is intended to provide practitioners with general information on injunctions and procedure to help guide you through one – whether you represent the petitioner or the respondent.
Types of Civil Injunctions in Florida
“Civil” injunctions fall under several criminal-sounding categories: Domestic Violence, Dating Violence, Repeat Violence, Sexual Violence, Stalking and Exploitation of a Vulnerable Adult. If a person accuses your client of say domestic violence, that person does not have to call the police or have your client arrested to give your client a permanent “record” that looks quite criminal. A final order of injunction can have severe and permanent consequences for your client, similar to a criminal conviction, like the ones listed below in this article. Therefore, even though injunctions are not technically “criminal,” they should be taken very seriously.
Representing the Petitioner
When you represent a petitioner, you are very much acting like a prosecutor. You listen to their version of events and decide if you want to use your time and skill to go after the other person and seek the injunction. If you think you have a solid case (and no other remedy is appropriate), you may want to go for the final order of injunction. Like a prosecutor, you will have the burden of proving the necessary elements to the court. If you get a final order, the judge will probably ask you what “sentence” you would like the court to impose. On the other hand, if you think the case is weak, you can try to engage in “plea negotiations” with the other party to see if a middle ground can be reached. Alternative resolutions are discussed further down in this article.
Petitioner clients will sometimes walk into your office thinking about petitioning the court for an injunction. Other times, they will walk into your office with a temporary injunction already in place. In either event, you should discuss the six different injunction types to see which may fit their situation/needs. Make sure they do not proceed with a domestic violence injunction when a dating violence one is more appropriate. Of course, you should also discuss possible alternative resolutions and the effects of a final order of injunction to see if an injunction is the appropriate course of action.
Representing the Respondent
When you represent a respondent, you are acting very much like a criminal defense attorney. You will want to review the accuser’s (petitioner’s) allegations against your client and work with them on a theory of defense. You can review evidence, talk to witnesses, and prepare for possible direct and cross examinations. Like a criminal defense attorney, you do not necessarily have to do or prove anything. If the petitioner does not know the law and leaves out an element they have to prove, the injunction should be dismissed. If you choose to present and enter evidence for the court to consider, so be sure to review how to lay the proper predicate to do so. Finally, you will have to prepare your client on how to testify if they so choose. If the final order of injunction is denied, you can ask the judge then and there to seal the contents of the case from the view of the general public.
When a respondent client comes to your office with court documents in hand, there is a chance that there is a temporary injunction already in place against them, which occurred without their knowledge. Not to worry. In the world of injunctions, all that really matters is the final order of injunction. Temporary injunctions are not nearly as detrimental as a final one, as they do not create the record that a final order of injunction does. Whether a judge gave the petitioner an ex-parte, temporary injunction or not, the respondent is probably in your office because there is a time and date for a final hearing within a few days. Even if the client comes into your office the day before the final hearing is set, you can always request a continuance of that hearing – and judges are very likely to grant that to give you time to prepare with your client.
Filing Your Notice of Appearance
When a client comes into your office to retain you for an injunction, your first thought may be to file a simple notice of appearance, which may not be a good idea. The amount of work involved in an injunction varies widely. So, unless you are getting paid hourly and the client understands that, I highly recommend filing a limited notice of appearance so that the court is aware of the matters on which your presence can be expected.
Let’s say you enter a boilerplate notice of appearance for a respondent, for example. You quoted them a flat fee because you think there will be only one hearing to attend. But, should a final order of injunction be entered, the court may order your client to complete classes and/or check in with the court on regular intervals to ensure compliance. Unless you filed a limited notice of appearance, you may be noticed to appear at every status hearing that the court sets going forward. Save yourself the trouble of having to file a motion to withdraw and file a limited notice of appearance.
Alternative Resolutions to a Final Order of Injunction
A voluntary no contact agreement, a voluntary no hostile contact agreement, a letter of apology, a settlement agreement, a parenting plan, an extended temporary injunction (with conditions as agreed upon by the parties). All of these are potential remedies that may help to resolve an injunction matter without the need for a final order of injunction. There is nothing wrong with approaching the other party (or their attorney, if they are represented) on the day of the hearing and proposing one of these resolutions. If you reach a resolution and the petition can be voluntarily dismissed without a hearing, you may have done a great service to both parties.
Before going too deep into the rabbit hole of the injunctive process, think about the best long-term solution for the client – and even the opposing party (especially if they are family or have children in common). Injunction clients often have no experience with the judicial system and they demand a certain outcome because they are worked up and not thinking clearly. As their attorney, you have an obligation to counsel them and present them with potential resolutions (like those above) that may be better suited for their goals.
Do not get caught up in this culture of “winning” that you do not stop to think about what may be best for the client and their family. If the client wants an injunction and you end up getting them a final order of injunction, you may think you “won” and did justice for them – because you gave them what they demanded. But did you really “win” for your client? What happens when a year later your client comes to you crying, telling you how miserable she has been since because the respondent, who also happens to be the father of their three common children, lost his high-paying job after the injunction? The final order of injunction went on his credit report and revoked his security clearance. So now, he can no longer afford the child support payments and he is bad mouthing her to their kids – things that never happened before. Now your client is struggling financially and the psychological well-being of her children is in jeopardy. Their ability to co-parent may be irreparably damaged.
If your client is in danger and/or no other relief would be effective, a final order of injunction may be the only way to go. The safety of the client must come first. On the other hand, if there are other means available that achieve the goals of the client, consider them. Read up on collaborative law. There is a lot of wisdom in that process. First, taking an approach like that may be in the best interests of your client. Second, engaging in alternatives to a final injunction may pay long-term dividends to you and, more importantly, your client.
So, remember, when you are presented with a case that is an easy “win,” think about what winning might be for your client. Present them with ideas and let them make the decision based on all their possible scenarios. I will never forget the advice one of my mentors gave to me: “Sometimes when you lose, you really win. And sometimes when you win, you really lose.” You will inevitably run into an opposing party (or their attorney) who may seem incorrigible and/or unprofessional. Before moving to “beat” them in court, try deescalating the situation by offering them a compromise – or admit that your client probably could have done things differently in the past. Try to get through to them by being genuinely nice and emotionally intelligent. If that does not work and you must move forward, I hope the remainder article is helpful to you.
The Ex-Parte Temporary Injunction
A petitioner can obtain an ex-parte temporary injunction relatively easily. An attorney can certainly help them here, or they can do it on their own. They just have to go to their local courthouse and fill out a petition for injunction (for protection against domestic violence, for example). The clerk must provide the petitioner with simplified forms and clerical assistance to fill them out. No bond is required of and no fee may be assessed to the petitioner. If the judge finds the petition to be facially sufficient, an ex-parte temporary injunction may be granted. If the court does not order a temporary injunction ex-parte, it may still (in its discretion) set a full hearing ordering both parties to appear.
The benefits of being able to get an ex-parte temporary injunction are significant for a victim (e.g., exclusive use and possession of the shared home, 100% exclusive temporary time sharing of minor children, temporary alimony, and temporary child support). If your client is the respondent in this example, they may not be allowed to return to the home. If the judge allow him or her to return, it may only be to retrieve personal items and clothing – and only if accompanied by law enforcement. You should also know that once a petitioner has exclusive possession of the home, they can do whatever they want with it (e.g., have someone else move in, sell furniture, destroy property). It may not be legal, but the point is that there is little that the respondent can do to stop it at that point – at least until they can obtain a court order.
The Final Hearing
For a final hearing, the respondent needs to be served and given notice to appear. The judge will normally start by asking the parties if they wish to proceed with the final hearing. Sometimes, the respondent will acquiesce to an injunction, saving the need for a hearing on the merits. If a hearing is held, evidence and testimony can be presented. The judge will start with the petitioner. You will want to brush up on evidence and legal objections. Instruct your client not to look at the opposing party in any inappropriate way. That is a sure-fire way for your client to lose big points with the judge. Once the petitioner has completed their case, the judge will give the respondent the same opportunity.
If they are available, courts must allow an advocate to be present with the petitioner (or respondent) free of cost. Some counties will provide advocates (who cannot speak in court, but only support the respondent), some will provide free attorneys.
Before a final order of injunction may be issued, the court must find that each element of the type of injunction sought is supported by competent and substantial evidence and it must provide the respondent an opportunity to be heard and present evidence. The standard of proof at final hearings is preponderance of the evidence and the petitioner has the burden.
Normally, if the petitioner does not appear, the petition will be dismissed (regardless of whether the respondent appears). The petitioner can also voluntarily dismiss the petition at the hearing or just before the it for a variety of reasons (e.g., they do not want to testify, they reach a private agreement with the respondent, they no longer wish to pursue the matter, etc.). Different counties handle injunction proceedings in different ways.
A petitioner must be served with process before the court may issue a final order of injunction. If the respondent has not been served, the court should continue the matter until service is completed. If a properly-served respondent does not attend the final hearing and the petitioner does, the court will most likely grant the final injunction (which will create a record that is very likely permanent). If the respondent attends the final hearing without a lawyer, there is still a good chance the respondent will walk out of the courthouse with a final order of injunction (again creating a likely permanent record). By then, the damage is done and hiring an attorney at that point may not accomplish much – because the injunction may never be able to be completely “undone.” Therefore, it is highly advisable that respondents retain counsel before trying to do it on their own.
PRACTICE TIP: Whenever you begin representation on an injunction matter, be sure to print out the current statute and research recent case law on the particular injunction. If the matter must be litigated, provide them to the judge to review. And before the judge begins delivering their decision (after the evidence has been heard), be sure to ask for leave to present your argument. When you do so, be sure to cite the statute and the case law that you found that supports your argument.
After the Final Hearing
Once the final hearing has been heard, the judge should render a decision. If the petition is denied, the parties will simply go their separate ways. Counsel your client on how to behave going forward. If the petition is granted, you (as the attorney) do not want to be caught off guard by what happens next – the length and the conditions of the injunction. Discuss those in advance with your client and you will win points with the presiding judge. A judge can order that an injunction remain in place for a term of months, years, or indefinitely (i.e., forever).
PRACTICE TIP: If you think the judge is wavering on whether she should grant the final injunction or not, suggest an extended temporary one. This can be useful regardless of the party you represent. Ask if the court would be willing to extend the temporary injunction for 6 months and to allow the parties to come back for a status hearing then. If there have been no violations, the parties may be okay with the court dismissing it. If there have been, then a final order can be put in place at that time – and for good reason.
Consequences of Final Orders of Injunction
Injunctions are public records. Even if there was only a temporary injunction granted and the court denied a final injunction on the merits, the accusations in the petition are public record on the clerk’s website. The stigma and the consequences of these records are similar to criminal matters.
All of these “civil” injunctions sound very criminal, and the general public may never know the difference. When respondents are served with them, they are often informed (by a variety of sources) not to worry because injunctions are not criminal, but civil. Unfortunately, not taking the matter seriously can have some pretty severe and permanent consequences (personally and professionally). Even experienced attorneys are sometimes shocked to hear about just what can happen to a person when a judge orders a final injunction. To start, a failure to comply with a court order can result in contempt of court (which can lead to jail time). A violation of the injunction is a first-degree misdemeanor, punishable by jail, probation and fines. Here are only some examples of consequences:
The court may also order you to comply with certain conditions if a final injunction is ordered, which I consider to be akin to reporting to probation. Here are some of the things the court can make you do:
Frequently Asked Questions
What are the elements that must be met before a final order of injunction may be entered?
It depends. The elements of each type of injunction are below, current as of the date of this publication. It is imperative that you know what these elements are before going into court. Keep in mind that some of these elements recently changed (and are subject to further legislative change, of course). Because these different injunctions derive from statutes, the proof necessary under the current, applicable statute must be carefully read in determining whether a particular cause of action has been established. Therefore, bring the current law with you to court to ensure the judge applies to correct law! They may not be aware of any updates or changes in the law.
Can a parent file for an injunction on behalf of a child?
Absolutely. To do so, however, the person must have standing. To have standing, the person usually has to be the parent or legal guardian of the minor child. However, the elements of the injunction may still require that the child testify. For example, a sexual violence injunction may not be obtained by a parent based solely on the parent’s testimony about what a child may have told them.
What can be done against a petitioner who files a frivolous or false claim?
Dismissal of the petition for one thing. However, before the judge dismisses the injunction (and arguably loses jurisdiction), you may want to ask the judge to order the petitioner pay your attorney’s fees and/or costs incurred by your client. See the next question and answer below for more on that. There is an argument as to whether or not fees and costs are available on domestic violence cases – but it is pretty clear that they are in all other types of injunctions. Additionally, if the petitioner did something egregious and they were caught lying in the petition or trying to mislead the court, you could ask the court hold them in contempt.
Can a party get attorney’s fees in injunction cases?
Yes, in certain cases a party may recover attorney’s fees. The Supreme Court of Florida held in Lopez v. Hall, 233 So.3d 451 (2018) that while section 784.046 contains no provisions authorizing an award of section 57.105 attorney’s fees, it may be applied to repeat, dating, and sexual violence injunction proceedings under section 784.046. Therefore, it is permissible for a judge to award attorney’s fees in these types of injunction cases.
There is an additional way to get attorneys’ fees in an injunction case after an order of injunction is granted: If your petitioner client suffers an injury or loss because the respondent (i.e., the respondent batters the petitioner), your client may be awarded economic damages for that injury and/or loss by the court issuing the injunction. Damages includes costs and attorneys’ fees for enforcement of the injunction.
How are violations of injunctions handled?
The person alleging a violation has occurred will usually have to call the police. The police will verify that the injunction is still valid and then investigate to see if probable cause exists as to the violation. They may arrest the person right then and there – or they can send the report to the State Attorney’s Office for review and consideration of filing formal charges. If you have a client who has been wrongfully accused of violating an injunction and it has been reported to police, you should consider writing a letter to the local state attorney’s office explaining the defense in an effort to prevent your client from being arrested improperly. I recommend consulting with a criminal attorney. Essentially, you will want to ask the state to file a “no bill” or a “no information” notice.
Do the rules of civil procedure apply?
Yes. Civil injunctions are filed as “DR” or domestic relations cases, just like dissolutions of marriage. Therefore, a party may engage in discovery provided for in the Florida Rules of Civil Procedure (e.g., depositions, requests to produce, interrogatories, experts witnesses). If a client has to appear for a final hearing the day after they hire you, you may want to request a continuance to engage in some of these discovery methods.
What Can I Do to Try to Resolve an Injunction Case Short of a Final Hearing?
In my experience, injunctions can usually be resolved without the need for a final hearing by open and genuinely kind communication with the other party – applying quasi-collaborative law methods. More often than not, I earn my fee by simply being polite and cordial with the opposing party. I listen to them and address their concerns to try to find solutions. It amazes me at just how often that works. One my favorite sayings is that you get more flies with honey than you do with vinegar. Coming out swinging at an injunction hearing may allow you to prevail that one time, but it probably does little to advance the client’s long-term interests. And you may lose the respect of any opposing counsel.
Whether you represent the petitioner or respondent, you are well within your right to contact the other party (or their attorney, if represented) to see if they will agree to talk with you to find a resolution short of a final order of injunction. It may save everyone the time, frustration and uncertainty of a final hearing. I usually do this by simply walking up to the other party and saying something like this, “Mr./Ms. Smith? My name is Thomas Feiter and I am attorney here in town and your spouse/partner/ex hired me to represent them. I want to start out by telling you that you do not have to talk to me. But if you do, I promise that I will hear you out and be polite and professional. And I will not to pressure you to do anything you do not want to do. Now, I would like to see if I can help you both get through this issue set for today in a way that may be in everyone’s best interests. Can I share with you some ideas I have on that?” Most of the time, I am initially met with hesitation and uncertainty (in rare cases, hostility). After all, I represent the “other” party. If they choose not to talk to me, I do not argue with them. I remain friendly, offer them my card and tell them that they can come get me in the other room if they change their mind or that they may contact my office another day. In most instances, however, the other party is happy to resolve the matter short of a formal hearing.
If a final hearing is unavoidable, do your due diligence and engage in discovery. Set depositions, send out interrogatories and requests to produce, hire expert witness or investigators if you must. Similar to other family law litigation, you may only be limited by your client’s budget. Opposing counsel may not be experienced in litigation. When they see you know what you are doing, they may come back to you and agree to voluntarily dismiss the petition.
What are some of the ways a petitioner can maximize their chances of prevailing at a final hearing?
Be prepared. The petitioner should write out what they plan to say to the court and understand that the respondent (or their attorney) will have an opportunity to cross examine them on it. The judge will also appreciate it if the petitioner sticks to sharing only information that is relevant to the matter. If the petitioner has photos, voicemails, or videos they want to share with the court, have them readily available to give to the judge. Keep in mind that they may be kept in evidence permanently. Burning those items to a CD or DVD is a good option. Many petitioners want to show the judge what is on their phone, which does not always go well because they probably do not want their phone entered into evidence! If there are witnesses who have seen abuse or any relevant conduct on behalf of the respondent, have them come to the hearing prepared to testify succinctly. Sometimes respondents will agree to an injunction when they see the petitioner is well prepared with evidence and witnesses, saving the petitioner the stress and uncertainty of a hearing.
It is a good idea for the petitioner to read the forms that the clerk is required to provide to them. The information contained in those documents should inform the petitioner what they will have to show unto the court in order to obtain a final order of injunction. The petitioner should also think about how long they want to ask the injunction to be enforceable, as well as any additional conditions they want to ask the judge to impose on the respondent.
Finally, always remember that the petitioner can hire their own attorney to represent them. If money is an issue, there are resources available to victims (such as victim advocates) that may available at no cost (e.g., Harbor House). Do not be afraid to call an attorney or agency to ask for help, support or guidance.
These same tactics can be applied if you represent the respondent. It is good to try to look at any case from both sides and objectively. That is what the judge will be doing after all.
How can an injunction be sealed, dismissed or “undone?”
There are several ways to “undo” an injunction. If you simply want the injunction to end (i.e., stop being enforceable), file a motion to modify or dissolve the injunction. Either party can move the court to do so. The movant will have to show that the purpose of the injunction has been satisfied and there is no longer a need for it. See Reyes v. Reyes, 104 So. 3d 1206 (2012) (Fla. Dist. Ct. App. 2013). A hearing will likely be required to allow the non-moving party an opportunity to be heard. Just remember that, even if that happens, the record (and the accusations made by the petitioner) may still be visible to the public on the clerk’s site. If you want to try to seal records or remove them from public view, you can file a “Request to Determine the Confidentiality of Trial Court Records in Non-Criminal Cases” or a “Motion to Make Court Records Confidential.”
If you want to argue that the injunction never should have been ordered in the first place, you can still file a motion to modify or dissolve and give the judge an opportunity to correct it. If that does not work, you can appeal the judge’s order to the DCA. To succeed, you will have to show that the court did not have jurisdiction or provide some other reason that the injunction was not legally put in place.
What if I feel that one of the parties is lying to me or to the court?
Personally, I believe a person when they tell me their version of an event, such as in a domestic violence injunction dispute. However, I also expect that the other person involved (i.e., the opposing party) will tell a completely different version of that same event. Obviously, it does not take a seasoned jurist to know that people – wait for it – do not always tell the truth. People lie. Everyone knows that. However, we also know (and perhaps seasoned practitioners know particularly well) that a person can tell a version of the event that is wrong or inaccurate without thinking they are wrong or inaccurate. This conundrum is called confabulation (also known as “honest lying”).
Confabulation makes our lives as attorneys particularly difficult – because we may never know which version of the event is right and which is wrong. Confabulation makes the jobs of our judges difficult for a similar reason – they may never know what really happened, yet they have to make a tough decision based on imperfect information.
When you begin representation of a client involved in an injunction, I would advise that you not go into it thinking in binary terms as far as whether your client is telling the truth or lying. The better approach is to remember that clients simply do not always recall events accurately. Most clients will probably recall events in the way that best suits their needs, whether that is done intentionally or unintentionally.
When clients intentionally misrepresent what happened, it is for one of the usual reasons like revenge, jealously, spite, or money. But when clients unintentionally misrepresent what happened, it is quite different and more complex – thus harder to detect and more difficult to understand. Explanations for this include mental illness, an inability to cope with major life problems, a desire for attention or sympathy, avoidance of consequences or responsibility, or confabulation.
Like many family law matters, injunctions are fraught with deep personal feelings and emotions on the part of our clients. When they come to us for assistance, let us take the time to listen and try to understand them, keeping their best interests in mind. While we should always protect the vulnerable, it is prudent to help our clients see past the injunction and find ways that ways to advance their family’s strength and resiliency.
Thomas Bert Feiter, B.C.S. with The Fighter Law Firm, P.A. in Orlando has been Board Certified in Criminal Trial Law since 2012. His practice focuses on criminal defense, injunctions, and personal injury.
Mr. Feiter has worked with and helped many victims of crimes as a prosecutor for the State of Florida, as Special Victim Counsel in the U.S. Army JAG Corps, and still now as an attorney in private practice.
(a) Was not supported by the material facts necessary to establish the claim or defense; or
(b) Would not be supported by the application of then-existing law to those material facts.
§ 57.105(1), Fla. Stat. (2013) (emphasis added). ↑
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