Sealing / Removal of Civil Restraining Orders
Florida restraining orders, also known as protection orders or injunctions for protection, are issued by courts for the purpose of keeping the “restrained party” away from another who requires protection due to alleged harassment, threats, or abuse.
As our Fort Lauderdale defense lawyers can explain, injunction requests must be supported by competent, substantial evidence. The petitioner also must show the accused’s actions have resulted in substantial emotional distress (under the standard of how any “reasonable person” in the same situation would feel).
Restraining orders can be permanent or temporary. If a judge rules a permanent injunction is necessary, it will for the rest of your life be red-flagged in background checks run by law enforcement, employers, banks, schools, landlords, family law courts, and potential romantic partners.
Given the severity of impact, our Fort Lauderdale restraining order attorneys are often asked whether it’s possible to seal or expunge an injunction from one’s permanent record - or at least to have one removed once it’s ordered.
The short answer is that while modification and removal of a permanent restraining order is possible, it’s likely to remain on your record - unless you can successfully convince the court the entire case should be sealed. That is going to be a steep uphill battle.
Meanwhile, temporary restraining orders (those that are not extended to permanent restraining orders) will appear in a search by law enforcement officers while they are active. However, if not extended to a permanent injunction, the temporary injunction will ultimately expire automatically. You may also move to dissolve that temporary injunction at any time, and your motion must be heard within five days, per FL. R. Civ. P. 1.610.Sealing, Expunging, Removal - Defined
The purpose of sealing and expunging of records is to help those who may have been arrested - but not convicted - of a non-violent criminal charge to prevent those records from being publicly accessed. Further, those whose records are sealed or expunged are not required to disclose their past records upon request in most instances (i.e., employment applications). Removal, meanwhile, is a request for the court to end an existing injunction; it remains on your record, but inactive.
- Sealing. A record that is sealed cannot be accessed by the general public, pursuant to F.S. 945.045(19). It will be shielded from (most) prospective employers, landlords, colleagues, etc. However, agencies listed in F.S. 943.059(6)(a) will still have access to the record. Those individuals are as follows: The subject of the record, the subject’s attorney, criminal justice agencies (for their respective criminal justice purposes or vetting candidates for employment), judges and prosecutors, and the Florida Bar Association (if the subject is a candidate for admission to the Bar). It can also come up if a person is applying for a job at the Department of Children and Families or the Department of Education (and any school under its licensing) or if they’re seeking to become appointed a guardian for someone else or applying for a concealed carry license.
- Expunging. When a record is expunged pursuant to F.S. 945.045(16), it is removed, erased, or destroyed. There is no public access. Even agencies that have access to sealed records (law enforcement, courts, etc.) must have a court order if they wish to view records that have been expunged.
- Removal. This is when you ask the court to modify, dismiss, or dissolve it so that it is no longer active. Either party to an injunction can request to remove an injunction at any point. However, it’s more likely removal will be successful if both parties agree on it. But as we saw in the 2020 case of Hobbs v. Hobbs (where the parties disagreed on injunction removal), domestic violence restraining orders can be removed if the evidence shows the circumstances that justified the injunction in the first place are no longer operative.
Civil restraining orders cannot be expunged because they are civil actions, not criminal. They will therefore remain on your criminal record. Still, you can request to have the conditions modified or to have the injunction removed.
It’s worth noting that a criminal charge of domestic violence is a disqualifying offense exempted from grants of sealing or expunction. So even if the case ends in a withholding of adjudication by the court (meaning you were not formally convicted), you still cannot have that record sealed or expunged.
However, civil cases might be sealed at the discretion of the court, per Florida Rules of Judicial Administration 2.420.How Does the Court Decide if Civil Case Records Should be Confidential?
Florida judicial branch records can be kept confidential when:
- They are made confidential under Florida law.
- They are deemed confidential by court rule.
- They are deemed confidential by prior case law.
Confidentiality may be necessary in cases where doing so would:
- Prevent a serious and imminent threat to the fair, impartial, orderly administration of justice.
- Protect a compelling government interest.
- Allow the court to obtain evidence to determine legal issues in a case.
- Avoid substantial injuries to innocent third parties.
Courts are prohibited from ordering confidentiality that is broader than necessary to protect the aforementioned interests.
Several years ago, the Florida Supreme Court issued even more stringent standardized rules for sealing court records in civil cases after Florida news media exposed hidden cases and secret dockets, sometimes referred to as “supersealing,” wherein hundreds of civil cases pertaining to domestic violence and divorce of judges, lawyers, police officers, politicians, and TV personalities were sealed and “vanished from citizens’ view.” The court’s new rules identify only a narrow category of court records for which public access will be automatically restricted (primarily child dependency cases). Otherwise, the court held, the rules provide “only a limited veil” of confidentiality in noncriminal cases.
The new rules specify that:
- Requests to make records in noncriminal cases confidential have to be made via written motion.
- A public hearing must be held for contested sealing motions - and may be needed in uncontested sealing motions as well (the latter being when both sides agree to have the case sealed).
- Courts that issue a sealing order must be specific about the grounds for sealing and the evidence justifying it.
- Sealing orders must be publicly published.
- Courts can impose sanctions on any party who files a sealing motion absent a good faith basis and sound factual and legal grounds.
The bottom line is that Florida courts favor a spirit of transparency and openness when it comes to court records. Convincing the court to seal your domestic violence civil injunction and make it confidential will be difficult - maybe impossible. Still, given the sizable impact that a permanent restraining order can have on your life, it’s worth discussing your legal options with a defense attorney who has extensive experience advocating for defendants/respondents in these sorts of cases.How Long Does a Florida Restraining Order Last?
The duration of a restraining order in Florida depends on the circumstances. Judges have a fair amount of discretion, which is why having a skilled Fort Lauderdale defense lawyer advocating on your behalf is so essential. The decision may boil down to who the judge finds most credible. This is where having an attorney who knows what they’re doing can really work in your favor.
Temporary restraining orders typically only last for 15 days, unless the court finds good reason to extend in advance of a final protection order hearing. If the petitioner doesn’t show up to that hearing, the temporary restraining order will be dismissed and no final protection order will be granted.
Permanent restraining orders, however, can last indefinitely. However, most courts in domestic violence injunction cases will set them to last about two years. Courts can extend them beyond that point, but the petitioner may be required to present evidence that the restraining order is still necessary to protect them. Petitioners can also reapply for a new restraining order if the first one expires. Here again, they need to show evidence of the continued danger.
If someone has filed a civil restraining order against you, it is important not to take this matter lightly. Secure legal counsel as soon as possible to protect your current and future interests.
If you are interested in discussing sealing or removal of your civil restraining order, call the South Florida criminal defense lawyers at The Ansara Law Firm at (954) 761-4011 for quality legal representation.