How to Get a Restraining Order

Posted 7 years ago | Categories - Restraining Order Attorney


     As a criminal defense attorney in Florida I handle a lot of restraining orders for clients. Injunctions for Protection, commonly known as restraining orders, are legal orders that are intended to protect a petitioner (alleged victim) from a respondent (alleged abuser). 

     There are four types of restraining orders in Florida that are intended to protect a victim. These four types of restraining orders are broken up entirely based on the relationship of the petitioner and the respondent. The four types are domestic violence, dating violence, sexual violence and repeat violence. Domestic violence is when the petitioner and the respondent have lived together at some point or have a child in common. Dating violence is when they never lived together, have no children in common and were involved in a romantic relationship within 6 months of filing the injunction. Sexual violence is for a victim of sexual abuse and there is no requirement that criminal charges be filed or if filed that the prosecution be successful. Finally, repeat violence is a catchall for any other relationship, like a neighbor or acquaintance, but there must be at least two incidents of violence, such as stalking, and at least one of those incidents must be within 6 months of filing.

     Once the type of restraining order is selected the next step is to prepare the petition and file it in court. The requirements for the petition are straightforward: it will mostly ask for personal information about the petitioner and the respondent, including address, place of employment, information on children (if any), and a physical description of the respondent so police can identify the person. The most important requirement in the petition is the allegation paragraph. This paragraph must describe in detail the allegations against the respondent, the relationship and the approximate dates of the incidents. This paragraph is extremely important and the entire basis for the restraining order will be based on this paragraph. Once the petition is filed a judge will review it immediately, usually the same day it is filed, and if the allegation paragraph meets the requirements under Florida law the judge will grant a temporary restraining order that is valid for 15 days.

     The final court hearing will be scheduled at or near the 15 days of the filing of the restraining order. The temporary restraining order will be valid and enforceable upon the respondent once police have served him or her. If the respondent cannot be located during these 15 days the court hearing will be extended and the temporary restraining order will also be extended for another 15 days. However, the temporary is still not enforced until the respondent gets served by law enforcement. The petitioner at this time should be gathering any witnesses, phone records, and any other evidence that they would want to present at the hearing. Any evidence that involves documents must be certified under the rules of evidence or a live witness must testify at the hearing about the record's authenticity. Again any evidence that is introduced, whether it is testimony or written evidence should be related to an allegation raised in the petition.

     If the respondent has been served with the temporary restraining order (along with the court notice for the hearing) and they fail to appear the judge will allow the petitioner to present the evidence. The judge will then rule based on the facts and evidence presented. If the respondent is present they will be giving an opportunity to object to the introduction of the evidence based on the Florida rules of evidence and they will be able to cross examine any witness including the petitioner. Once the petitioner has rested his or her case, the respondent will be allowed to present their case and introduce any evidence. The judge will then rule on the petition and on custody and visitation issues, if any. The judge can grant a restraining order for life or for a period of time. The judge could also deny the petition. If the restraining order is granted, at any point in the future either the petitioner or the respondent can file a motion to remove the restraining order.

     It is important to understand that this court hearing is treated just like a trial and thus the rules of evidence apply to all evidence including testimony and written documents. Hearsay and non authenticated documents will not be allowed in. For example, emails, text messages, voice mails will not be admitted into evidence unless the Florida rules of evidence are satisfied. That is why it is very important to hire an attorney that has experience with restraining orders so that all the steps above are carried out correctly and all the evidence can be admitted in court. The chances of succeeding in getting a restraining order will be increased if an experienced attorney is involved from the beginning.

     For an assessment of your case or to help you determine if you qualify for a restraining order please contact me today.

Additional Resources:

Domestic Violence Definitions under Florida Law

Restraining Orders under Florida Law