Should I Fight Back Against a Domestic Violence Restraining Order?

Florida domestic violence restraining orders - also called injunctions and protection orders - are issued by courts for the purpose of protecting individuals at high risk of physical danger in situations of domestic abuse.

If you are the subject/respondent of a domestic violence injunction request in Florida, allowing it to go unchallenged can have serious, long-term ramifications. Uncontested requests are usually granted. Regardless of whether the relationship is well and truly over or you’re destined to reunite, fighting back against a domestic violence restraining order is key to protecting your own reputation, finances, relationships, freedom, and future.

Obtaining a domestic violence restraining order requires far less proof than a criminal conviction - and yet it stays on your permanent public record all the same - with all the adverse consequences that can carry. Even long after the injunction expires, it can get dredged up at pivotal junctures in your life (when you’re looking for a new job, a place to live, child custody hearings, etc.).

Even if staying away from each other for a while (or forever) is a good idea, not fighting back against an order of protection is a decidedly bad idea.

As South Florida domestic violence criminal defense lawyers, we strongly urge any restraining order respondents to promptly seek out an experienced attorney who can review the facts and help devise the smartest defense strategy.

There are five different types of protective injunctions available in Florida. These are:

• Domestic violence
• Sexual violence
• Dating violence
• Repeat violence
• Stalking

In cases of domestic violence, court-ordered restrictions on interpersonal communications can be imposed one of two ways:

1. A no-contact order, imposed by a criminal court judge against a defendant as a standard condition of release from jail following arrest for domestic violence.
2. A protective order (temporary or final), issued by a civil court judge at the request of a domestic violence victim or someone who establishes reasonable fear they’re in imminent danger of becoming a domestic violence victim.

Here, we’re focused mainly on civil injunction legal challenges. Successful pushback on criminal case no-contact orders is technically possible, but often not worth the risk. To briefly explain: Criminal case no-contact orders generally forbid defendants from any contact whatsoever with the victim while the case is pending. Even if the victim isn’t cooperating with prosecutors and/or reaches out to the defendant first, to respond is to risk returning to jail. Courts will usually only lift no-contact orders mid-case if the victim formally requests it AND agrees to testify under oath about what happened. This is a huge risk for the defense. Regardless of intent, such testimony can be damaging to your case. It’s usually better to wait until the case is resolved.

Back to civil domestic violence injunction requests: Courts take these requests pretty seriously. If a petitioner files for a domestic violence protection order and the judge denies them, the petitioner’s life may be endangered. No judge wants that weighing on their conscience. On the flip side, injunctions have serious repercussions for respondents and should never be issued without the exercise of due process and considerable care.

F.S. 741.30 spells out the process and proof burden for civil domestic violence injunctions. Basically, anyone who is a victim of domestic violence (as outlined in F.S. 748.28) or who has cause to believe they’re in imminent danger of becoming one has standing in the circuit court to file a petition for an injunction of protection against domestic violence.

Temporary protection orders (TPOs) go into effect immediately and are generally valid for 15 days. Final protection orders (FTOs) require a full hearing. They vary in duration, but usually expire eventually. They can be modified, dissolved, or extended upon request following judicial review.

Civil domestic violence restraining orders can be granted even if:

• There is no pending criminal case.
• One of the parties involved has moved out of the house they once shared.
• The parties aren’t married (so long as they are family or household members, ex-spouses, or co-parents, as defined in the statute).

If both parties want restraining orders against each other, the court can’t issue mutual orders in the same case. However, it can grant separate orders if each individual meets the necessary criteria.

TPOs are fairly easy to get in Florida. Judges can grant them ex parte, which means they only need to consider one side of the story before making a decision. The respondent is not given the chance to hear the allegations against them, cross-examine the witnesses, or present any evidence in their own favor. These requests can be denied if the judge isn’t convinced the petitioner is in imminent danger of domestic violence by the respondent.

If the request is granted, the court has 15 days from the date of that TPO ruling to set a hearing on a final injunction. The respondent must be notified and given the opportunity to present evidence and defend themselves. Even if the court denies a TPO request, the petitioner can still request a hearing for an FTO.

FTO hearings are when the court will weigh all the evidence and sworn testimony and decide a course of action, which may include:

• Dismissing the temporary injunction.
• Extending the temporary injunction for another 15 days for good cause.
• Issue a permanent injunction.

If an FTO is issued, some conditions that may be imposed on respondent:

• Zero contact or attempted contact with the victim, victim’s children, and family members.
• Forced to move out of a shared residence.
• Maintain a distance of 500+ feet from the victim’s residence, workplace, school, frequented stores, etc.
• Temporary denial of child custody or unsupervised parenting time.
• Forced surrender of all firearms and ammunition.
• Mandated completion of a 12-week batterer’s intervention program.

In each of these scenarios, it is the petitioner who bears the proof burden. If you are served with notice of an injunction, working with a skilled Broward domestic violence defense lawyer to discredit the petitioner’s evidence, corroborate your own evidence, and raise technical challenges can make a big difference.

Acting quickly to challenge a Florida domestic violence restraining order request before it’s granted is usually your best chance at success. If the court has already issued a TPO, don’t delay - you have about two weeks to hire a lawyer, gather your evidence, and prepare to make your case.

In the event an FTO is granted, the respondent may request a rehearing or reconsideration from the court. You have 15 days from the date of final judgment to file this motion. Note: A rehearing is not a repeat of the entire process. They’re usually limited to certain points of law or fact that the court may have overlooked or misread in the original decision. An attorney can help with this.

Another option is appeal to a higher court. Notice of appeal must be filed within 30 days of the final judgment filing. This is an option when you believe the court erred in the application of law. For example, in the 2020 case of J.G.G. v. M.S., Florida’s 5th District Court of Appeal reversed a domestic violence injunction against a husband because the lower court erred in allowing his petitioner wife to testify about allegations she had not outlined in her original hearing request.

Appeal is also an option if the facts as established at the FTO hearing were insufficient as a matter of law to establish an objectively reasonable fear of imminent violence. For example, in the 2022 case of Werner v. Werner, Florida’s 2nd District Court of Appeal reversed a final domestic violence injunction granted by the lower court because the petitioner had admitted under cross examination that the respondent (her estranged husband) had never physically harmed her or threatened to do so.

Either the respondent or the petitioner can move to dissolve a protection order at any time. If the respondent is the requesting party, they must prove it no longer serves a valid purpose.

If an injunction is about to expire (most do at some point), the petitioner can request an extension. To prevail, they present evidence of either an additional act of domestic violence or ongoing reasonable fear of imminent domestic violence.

Appeals can also be made on both grants of extensions and denials to dissolve.

If you are the subject of a domestic violence injunction request in South Florida, call The Ansara Law Firm today for your free initial consultation at (954) 761-4011.