Anatomy of a Florida Injunction

Injunctions, or restraining orders, are court orders prohibiting the respondent from contacting, communicating with or being physically near the petitioner. Injunctions are guided by Florida Statute 741.28 - 741.31. In Florida, there are are four types of injunctions, these types are an injunction for domestic violence, repeat violence, sexual violence and stalking. While each of these types have their own elements of proof and specific subject matter, the court process is largely the same for each.

An injunction begins when the petitioner, the person seeking the injunction, files a petition with the court. This is a sworn document where the petitioner alleges the facts and circumstances that they feel entitle them to an injunction. It is very important to be as thorough as possible because it is on the allegations contained in the petition and those alone that the court will consider. This is explained more fully in the recent case Brooks v. Basedo, 336 So.3d 423 (Fla. 5th SCA 2022). This evidentiary rule is why it is so important to have any attorney draft the initial petition to ensure that everything is pled properly or represent you as the respondent to hold the petitioner to their burden and give you the best chance of success at a hearing. 

Once submitted, the petition will go directly to a judge to review. If the judge assigned to handle injunctions is not available, the petition will go to the duty judge to ensure it is reviewed quickly. This review process is ex parte, meaning that the judge reviews it on their own, no attorneys or litigants can make an argument to try to sway the judge. If, after review, the judge finds that the facts are in line with the law they will issue a temporary injunction and set the matter for a hearing. 

If the judge issues the temporary injunction, there will be an order delineating prohibited conduct that will be served, by law enforcement, on the respondent. This order will also have the final hearing date. The goal of the hearing is to determine if there are sufficient facts, supported by evidence, to support an entry of a permanent injunction. Because injunctions are designed to be fast remedies, they move through the system very quickly and the final hearing date is usually set about two weeks after the temporary injunction is ordered. 

At the hearing, the petitioner will be called upon to provide testimony and evidence to the court to support the issuance of the injunction. This is really a bench trial, and all the rules of evidence apply. A mistake many people make, either petitioner or respondent, is thinking they can just talk it through in court and that the judge will figure it out. It is important to have a trial tested attorney guiding the testimony and evidentiary portion and advocating to protect your rights. After each of the petitioner witnesses testifies on direct exam, the respondent or their attorney is able to ask questions on cross examination. A skilled attorney can help disprove or discredit the respondent's claims to move the judge towards a non-issuance of a final injunction. Either party can present pictures, video, or legally acquired audio to help show the judge their side of the case. Again, it is important to note that both sides must follow the rules of evidence and be able to authenticate any item of evidence they want the court to consider. 

Once the evidentiary portion of the hearing is concluded the judge will review the evidence and testimony and see if the facts presented qualify under the law. If the judge feels that they do, a permanent injunction will be issued and it is largely within the judge’s discretion as to how long it will remain in place. One and two year injunctions are common but they could be ordered indefinitely, depending on the severity of the conduct involved. The judge will typically grant the petitioner use and possession of home- regardless of ownership meaning the respondent will be forced to find other living arrangements for the duration of the injunction period. The judge can also order the petitioner to take anger management, batterer’s intervention or drug and alcohol classes as part of the injunction. Some other consequences of having an injunction entered against you are a violation can result in a criminal case, possibly even a felony aggravated stalking. While the injunction is in place, the respondent becomes federally prohibited from possessing firearms.

If you are the respondent to an injunction case, and the petition is based on a criminal event for which you were arrested, you need to be very careful in defending the injunction so that you do not inadvertently incriminate yourself and make the prosecutor’s case against you stronger. Anything you say in injunction is recorded and can be used against you in the criminal case. It can be helpful in your criminal case if you also retain your lawyer to handle the injunction because the injunction discovery process and the hearing may allow your lawyer to gain information that may not otherwise be available to them through discovery the criminal case. For example, in misdemeanor cases depositions are typically not allowed but in injunction cases they are. If the injunction is based on a misdemeanor arrest, your attorney may be able to use what they learned in the injunction case to aid in your criminal defense.

With so many complexities and so much at stake it is important to have an experienced advocate with you during an injunction. At Caughey Law, we are experienced in the process from filing, to discovery, to litigating the final  hearing both for the petitioner and for the respondent. If you have questions about filing for an injunction or have been served with a temporary injunction, call the office to set up a consultation and case strategy conference to make sure your rights are preserved.