Key Insights on Domestic Violence Injunctions by Judge Thomas R. Eineman
undefined
Judge Thomas R. Eineman
Domestic Violence Injunctions
Injunction properly entered when
evidence showed numerous acts of
violence over years, as well as recent
incidents of violence. Contrast with
isolated act occurring years before
filing of Petition.
Domestic Violence Injunctions
When testimony on pivotal issues of
fact not contradicted and no
conflicting evidence introduced,
statements of fact are not to be
disregarded or arbitrarily rejected.
Domestic Violence Injunctions
Motion to modify or dismiss generally
not avenue to challenge initial entry
of inj; however, when final injunction
was entered in effect on ex-parte
basis, initial entry of final injunction
can be challenged as part of motion.
Domestic Violence Injunctions
Final Injunction properly modified
dissolution decree as to time sharing
and provided for no contact for
Respondent. This was not in effect a
termination of Respondent’s parental
rights.
Domestic Violence Injunctions
Mere uncivil or annoying behavior not
sufficient for entry of final judgment.
Domestic Violence Injunctions
Respondent’s due process rights
violated when Petitioner, over
objection, was allowed to testify
about dv incidents not set forth in
Petition.
Domestic Violence Injunctions
Petitioner’s request for injunction
denied, however Respondent’s due
process rights violated when sua
sponte orders were entered in
dissolution action without any notice
or motion having been filed.
Domestic Violence Injunctions
Petitioner’s request for injunction
denied, as it was irrelevant that
Respondent was arrested for act of dv
against his then girlfriend. There was
no recent act of violence or threat of
violence against Petitioner.
Domestic Violence Injunctions
Allegations of events that occurred
four years before Petition was filed
too remote to support issuance of
injunction absent current allegations.
Also, contacts made by Respondent
with various officials served
legitimate purpose.
Domestic Violence Injunctions
Allegations that grandmother abused
her daughter when she was a child
and involved DCF in attempts to take
child away insufficient for final
injunction in favor of granddaughter
against grandmother.
Domestic Violence Injunctions
For entry of Final Injunction:
•
Petitioner must be victim of d.v., or
•
have objectively reasonable fear
that d.v. is imminent.
Domestic Violence Injunctions
Completed acts of domestic violence
sufficient for final inj. without need to
show reasonable cause to believe
imminent danger of becoming victim
of domestic violence. “Violence”
includes stalking.
Domestic Violence Injunctions
Act of d.v. committed in Florida
subjects non-resident Respondent to
personal jurisdiction which is
necessary for entry of domestic
violence injunction.
Domestic Violence Injunctions
Final Injunction should not have been
entered when basis was minor child’s
hearsay statements and no
corroborating evidence of abuse
presented. Child was unavailable to
testify. F.S. 90.803(23).
Domestic Violence Injunctions
Involvement in contentious legal
proceedings, without more,
insufficient to establish reasonable
fear of imminent harm or danger. No
recent threats directed to Petitioner
or attempts to contact her.
Domestic Violence Injunctions
Final injunction should be dissolved
when circumstances have changed
since initial entry such that
continuation of injunction would
serve no valid purpose.
Domestic Violence Injunctions
Petitioner sought extension of
injunction. However, possibility of
future contact between the parties is
not, without more, sufficient to
conclude that circumstances
underlying the injunction remain the
same.
Stalking Injunctions
An individual who willfully,
maliciously, and repeatedly follows,
harasses, or cyberstalks another
individual commits stalking.
Stalking Injunctions
“Harass” is to engage in a course of
conduct directed at a specific person
causing substantial emotional
distress and serving no legitimate
purpose.
Stalking Injunctions
“Course of conduct” is a pattern of
conduct composed of a series of acts
over a period of time evidencing a
continuity of purpose.
Stalking Injunctions
Cyberstalking: engaging in a course
of conduct to communicate, or to
cause to be communicated, words,
images, or language by or through the
use of electronic mail or electronic
communication, directed at a specific
person; or
Stalking Injunctions
to access, or attempt to access,
online accounts or Internet-connected
home electronic systems of another
person without that person’s
permission, causing substantial
emotional distress and serving no
legitimate purpose.
Stalking Injunctions
When request for final injunction was
denied the Respondent was entitled
to return of firearms previously
surrendered without further
evidentiary hearing.
Stalking Injunctions
Although stalking by definition
requires repeated acts, only one
incident of stalking is required for
final injunction in 1
st
DCA. Contrast
with other DCAs.
Stalking Injunctions
Conduct is legitimate (and hence not
stalking) when there is reason for the
conduct other than to harass the
victim.
Stalking Injunctions
Whether conduct causes substantial
emotional distress must be evaluated
using a reasonable person standard.
Stalking Injunctions
General relationship problems
between neighbors such as noise,
light, and other complaints and
“staring” not sufficient for final
injunction.
Stalking Injunctions
Respondent denied due process
when Petitioner was allowed to call
additional witnesses without allowing
the Respondent to cross examine the
Petitioner.
Stalking Injunctions
Competent substantial evidence for
entry of injunction lacking when sole
basis for entry were cell phone videos
looked at by court but not part of
record or admitted into evidence.
Stalking Injunctions
Ex-wife blocked ex-husband on social
media and telephone. He sent text
messages about their children to her
current boyfriend and asked that the
messages be given to the former wife.
These messages served legitimate
purpose.
Stalking Injunctions
When Petition is brought on behalf of
child only the child is the only
relevant person when undertaking an
analysis of whether stalking occurred.
Stalking Injunctions
Respondent denied due process
when no hearing was granted
regarding motion to modify or dismiss
final injunction.
Stalking Injunctions
F.S. 784.048 does not require
contact with the victim. Also,
substantial emotional distress does
not need to occur at same time that
stalker’s actions occur.
Stalking Injunctions
Injunction overly broad when it
prohibited the Respondent from
posting anything online related to or
about Petitioner, even statements
that would unquestionably constitute
pure political speech. First
amendment violated.
Stalking Injunctions
Injunction banning social media posts
about a person instead of directed at
a person is prior restraint of free
speech. First amendment violated.
Stalking Injunctions
Proponent of admission of evidence
bears burden to prove authenticity of
text messages as being sent by
Respondent. Final inj. reversed as
text messages were erroneously
admitted.
Repeat Violence Injunctions
Need two acts of “violence”, one in
the last six months. “Violence”
includes stalking.
Repeat Violence Injunctions
Injunction cannot be used to compel
civility and common decency.
Litigants were woman’s former
husband and current boyfriend.
Repeat Violence Injunctions
Multiple acts stemming from single
violent incident not repeat violence if
not separated by time or distance.
Injunction properly entered when acts
of violence occurred both inside and
outside of club.
Repeat Violence Injunctions
Verbal confrontation not an act of
violence in absence of assault, to-wit:
an intentional, unlawful threat by
word or act to do violence, coupled
with apparent ability to do so, and
doing some act creating well founded
fear that violence is imminent.
Dating Violence Injunctions
a) Dating relationship within the last
six months; b) relationship
characterized by expectation of
affection or sex; c) parties have been
involved over time and on a
continuous basis during the course of
the relationship.
Dating Violence Injunctions
1) Been victim of dating violence
and
reasonable cause to believe he or she
is in imminent danger of another act
of dating violence; or 2) Petitioner has
reasonable cause to believe he or she
is in imminent danger of becoming
victim of dating violence.
Dating Violence Injunctions
Petitioner must show reasonable
cause to believe he or she is in
imminent danger of becoming victim
of an act of dating violence in future,
even if Petitioner has already been
the victim of dating violence.
Dating Violence Injunctions
Statute requires only that
relationship is continuous, significant,
and intimate. Dating relationship
found where evidence demonstrated
a 4 year, intimate sexual relationship
between the parties.
.
Dating Violence Injunctions
Respondent’s post-breakup behavior
not sufficient for Petitioner to show
reasonable cause to believe he or she
is in imminent danger of becoming
victim of an act of dating violence in
future.
Dating Violence Injunctions
Petition should have been dismissed
as it did not include any allegations
showing Petitioner’s reasonable
cause to believe he or she is in
imminent danger of becoming victim
of an act of dating violence in future.
Sexual Violence Injunctions
Sexual violence: a) Must be reported
and victim must cooperate; or b)
Respondent who committed violence
has been sentenced for it and term of
imprisonment has expired or will
expire within 90 days following filing
date of petition.
Sexual Violence Injunctions
Injunction sought o/b/o child.
Petitioner must be an eyewitness, or
provide direct physical evidence, or
provide an eyewitness affidavit to the
sexual battery if Respondent is the
other parent, stepparent, or legal
guardian.
.
Judge Thomas R. Eineman
Circuit Judge
Fifth Judicial Circuit
teineman@circuit5.org
In this update, Judge Thomas R. Eineman provides crucial insights on domestic violence injunctions, emphasizing the importance of evidence showing a pattern of violence over time. The update covers various aspects such as the proper entry of injunctions, challenging initial entries, modification of final injunctions, and the importance of due process rights for both petitioners and respondents.
Download Presentation
Please find below an Image/Link to download the presentation.
The content on the website is provided AS IS for your information and personal use only. It may not be sold, licensed, or shared on other websites without obtaining consent from the author. Download presentation by click this link. If you encounter any issues during the download, it is possible that the publisher has removed the file from their server.
E N D
Presentation Transcript
DOMESTIC VIOLENCE CASELAW UPDATE Judge Thomas R. Eineman Judge Thomas R. Eineman
Domestic Violence Injunctions Domestic Violence Injunctions Injunction properly entered when evidence showed numerous acts of violence over years, as well as recent incidents of violence. Contrast with isolated act occurring years before filing of Petition.
Domestic Violence Injunctions Domestic Violence Injunctions When testimony on pivotal issues of fact not contradicted conflicting evidence statements of fact are not to be disregarded or arbitrarily rejected. and introduced, no
Domestic Violence Injunctions Domestic Violence Injunctions Motion to modify or dismiss generally not avenue to challenge initial entry of inj; however, when final injunction was entered in effect on ex-parte basis, initial entry of final injunction can be challenged as part of motion.
Domestic Violence Injunctions Domestic Violence Injunctions Final Injunction properly modified dissolution decree as to time sharing and provided for no contact for Respondent. This was not in effect a termination of Respondent s parental rights.
Domestic Violence Injunctions Domestic Violence Injunctions Mere uncivil or annoying behavior not sufficient for entry of final judgment.
Domestic Violence Injunctions Domestic Violence Injunctions Respondent s due process rights violated when objection, was allowed to testify about dv incidents not set forth in Petition. Petitioner, over
Domestic Violence Injunctions Domestic Violence Injunctions Petitioner s request for injunction denied, however Respondent s due process rights violated when sua sponte orders were entered in dissolution action without any notice or motion having been filed.
Domestic Violence Injunctions Domestic Violence Injunctions Petitioner s request for injunction denied, as it was irrelevant that Respondent was arrested for act of dv against his then girlfriend. There was no recent act of violence or threat of violence against Petitioner.
Domestic Violence Injunctions Domestic Violence Injunctions Allegations of events that occurred four years before Petition was filed too remote to support issuance of injunction absent current allegations. Also, contacts made by Respondent with various officials legitimate purpose. served
Domestic Violence Injunctions Domestic Violence Injunctions Allegations that grandmother abused her daughter when she was a child and involved DCF in attempts to take child away insufficient for final injunction in favor of granddaughter against grandmother.
Domestic Violence Injunctions Domestic Violence Injunctions For entry of Final Injunction: Petitioner must be victim of d.v., or have objectively reasonable fear that d.v. is imminent.
Domestic Violence Injunctions Domestic Violence Injunctions Completed acts of domestic violence sufficient for final inj. without need to show reasonable cause to believe imminent danger of becoming victim of domestic violence. Violence includes stalking.
Domestic Violence Injunctions Domestic Violence Injunctions Act of d.v. committed in Florida subjects non-resident Respondent to personal jurisdiction necessary for entry of domestic violence injunction. which is
Domestic Violence Injunctions Domestic Violence Injunctions Final Injunction should not have been entered when basis was minor child s hearsay statements and no corroborating evidence of abuse presented. Child was unavailable to testify. F.S. 90.803(23).
Domestic Violence Injunctions Domestic Violence Injunctions Involvement in contentious legal proceedings, without more, insufficient to establish reasonable fear of imminent harm or danger. No recent threats directed to Petitioner or attempts to contact her.
Domestic Violence Injunctions Domestic Violence Injunctions Final injunction should be dissolved when circumstances have changed since initial entry continuation of injunction would serve no valid purpose. such that
Domestic Violence Injunctions Domestic Violence Injunctions Petitioner injunction. However, possibility of future contact between the parties is not, without more, sufficient to conclude that underlying the injunction remain the same. sought extension of circumstances
Stalking Injunctions Stalking Injunctions An individual who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another individual commits stalking.
Stalking Injunctions Stalking Injunctions Harass is to engage in a course of conduct directed at a specific person causing substantial distress and serving no legitimate purpose. emotional
Stalking Injunctions Stalking Injunctions Course of conduct is a pattern of conduct composed of a series of acts over a period of time evidencing a continuity of purpose.
Stalking Injunctions Stalking Injunctions Cyberstalking: engaging in a course of conduct to communicate, or to cause to be communicated, words, images, or language by or through the use of electronic mail or electronic communication, directed at a specific person; or
Stalking Injunctions Stalking Injunctions to access, or attempt to access, online accounts or Internet-connected home electronic systems of another person without permission, causing emotional distress and serving no legitimate purpose. that person s substantial
Stalking Injunctions Stalking Injunctions When request for final injunction was denied the Respondent was entitled to return of firearms previously surrendered without evidentiary hearing. further
Stalking Injunctions Stalking Injunctions Although requires repeated acts, only one incident of stalking is required for final injunction in 1st DCA. Contrast with other DCAs. stalking by definition
Stalking Injunctions Stalking Injunctions Conduct is legitimate (and hence not stalking) when there is reason for the conduct other than to harass the victim.
Stalking Injunctions Stalking Injunctions Whether conduct causes substantial emotional distress must be evaluated using a reasonable person standard.
Stalking Injunctions Stalking Injunctions General relationship problems between neighbors such as noise, light, and other complaints and staring not sufficient for final injunction.
Stalking Injunctions Stalking Injunctions Respondent denied due process when Petitioner was allowed to call additional witnesses without allowing the Respondent to cross examine the Petitioner.
Stalking Injunctions Stalking Injunctions Competent substantial evidence for entry of injunction lacking when sole basis for entry were cell phone videos looked at by court but not part of record or admitted into evidence.
Stalking Injunctions Stalking Injunctions Ex-wife blocked ex-husband on social media and telephone. He sent text messages about their children to her current boyfriend and asked that the messages be given to the former wife. These messages served legitimate purpose.
Stalking Injunctions Stalking Injunctions When Petition is brought on behalf of child only the child is the only relevant person when undertaking an analysis of whether stalking occurred.
Stalking Injunctions Stalking Injunctions Respondent denied due process when no hearing regarding motion to modify or dismiss final injunction. was granted
Stalking Injunctions Stalking Injunctions F.S. 784.048 does not require contact with the victim. Also, substantial emotional distress does not need to occur at same time that stalker s actions occur.
Stalking Injunctions Stalking Injunctions Injunction overly broad when it prohibited the Respondent from posting anything online related to or about Petitioner, even statements that would unquestionably constitute pure political speech. amendment violated. First
Stalking Injunctions Stalking Injunctions Injunction banning social media posts about a person instead of directed at a person is prior restraint of free speech. First amendment violated.
Stalking Injunctions Stalking Injunctions Proponent of admission of evidence bears burden to prove authenticity of text messages as being sent by Respondent. Final inj. reversed as text messages were erroneously admitted.
Repeat Violence Injunctions Repeat Violence Injunctions Need two acts of violence , one in the last six months. Violence includes stalking.
Repeat Violence Injunctions Repeat Violence Injunctions Injunction cannot be used to compel civility and common Litigants were husband and current boyfriend. decency. former woman s
Repeat Violence Injunctions Repeat Violence Injunctions Multiple acts stemming from single violent incident not repeat violence if not separated by time or distance. Injunction properly entered when acts of violence occurred both inside and outside of club.
Repeat Violence Injunctions Repeat Violence Injunctions Verbal confrontation not an act of violence in absence of assault, to-wit: an intentional, unlawful threat by word or act to do violence, coupled with apparent ability to do so, and doing some act creating well founded fear that violence is imminent.
Dating Violence Injunctions Dating Violence Injunctions a) Dating relationship within the last six months; b) relationship characterized by expectation of affection or sex; c) parties have been involved over time and on a continuous basis during the course of the relationship.
Dating Violence Injunctions Dating Violence Injunctions 1) Been victim of dating violence and reasonable cause to believe he or she is in imminent danger of another act of dating violence; or 2) Petitioner has reasonable cause to believe he or she is in imminent danger of becoming victim of dating violence. and
Dating Violence Injunctions Dating Violence Injunctions Petitioner must show reasonable cause to believe he or she is in imminent danger of becoming victim of an act of dating violence in future, even if Petitioner has already been the victim of dating violence.
Dating Violence Injunctions Dating Violence Injunctions Statute relationship is continuous, significant, and intimate. Dating relationship found where evidence demonstrated a 4 year, intimate sexual relationship between the parties. . requires only that
Dating Violence Injunctions Dating Violence Injunctions Respondent s post-breakup behavior not sufficient for Petitioner to show reasonable cause to believe he or she is in imminent danger of becoming victim of an act of dating violence in future.
Dating Violence Injunctions Dating Violence Injunctions Petition should have been dismissed as it did not include any allegations showing Petitioner s reasonable cause to believe he or she is in imminent danger of becoming victim of an act of dating violence in future.
Sexual Violence Injunctions Sexual Violence Injunctions Sexual violence: a) Must be reported and victim must cooperate; or b) Respondent who committed violence has been sentenced for it and term of imprisonment has expired or will expire within 90 days following filing date of petition.
Sexual Violence Injunctions Sexual Violence Injunctions Injunction Petitioner must be an eyewitness, or provide direct physical evidence, or provide an eyewitness affidavit to the sexual battery if Respondent is the other parent, stepparent, or legal guardian. . sought o/b/o child.
Judge Thomas R. Eineman Judge Thomas R. Eineman Circuit Judge Circuit Judge Fifth Judicial Circuit Fifth Judicial Circuit teineman@circuit5.org teineman@circuit5.org
