Recent Posts in Domestic Violence Category

With the onslaught of celebrity coverage surrounding Mel Gibson's recorded telephone rants, many divorce clients have asked whether it is legal to record their spouse or ex-spouse's telephone conversations.  The answer depends on several different factors and often varies on a case by case basis.

The general rule is, no, unless you obtain express consent.  Florida wiretapping laws are complex and can carry criminal or civil punishments if violated.  In situations where your spouse would have a reasonable expectation of privacy, it is not proper to record your spouse's telephone conversations without permission.  I typically recommend always obtaining permission from your spouse or ex-spouse before recording any telephone call or communication.

However, there are several exceptions to this general rule, that would require an in-depth analysis of the facts and circumstances of your family law case. 

Contact your expert Tampa family law attorney to discuss whether these exceptions apply to you and your case.

After a domestic violence injunction has been granted, it remains in effect according to the terms and conditions of the judge’s ruling.  These terms and conditions of a domestic violence injunction can have a severe impact on person’s daily life.  The impact can be felt in the following areas; timesharing schedules with their children, imposition of child support obligations, restrictions on a person’s ability to visit certain people and places, and conditions on attending counseling sessions.

Often times a party fails to abide by the judge’s ruling and a violation occurs.  Florida Statute § 741.30(9)(a) provides that a violation of the protective provisions of an injunction against domestic violence may be prosecuted in a contempt hearing before the domestic violence judge or as a criminal violation.  Many people are unaware of the significance of a violation and the criminal prosecution which may follow.

A person may be charged with a misdemeanor in the event they have violated the terms and conditions of their domestic violence injunction.  The most common type of violation leading to a criminal prosecution includes a scenario where the Respondent (whom the injunction has been entered against) has illegally contacted or interfered with the Petitioner (whom the injunction was designed to protect).  In this case, the State Attorney’s Office would have the discretion to file a criminal domestic violence charge against the Respondent. 

In the event the State Attorney’s Office filed a criminal charge, the Respondent would face additional criminal sanctions.  These sanctions include a jail sentence, probation, fines, community service, and other restrictions imposed by the criminal judge.  It is important to note that while the criminal case is pending, the original conditions of the domestic violence injunction remain in place and the Respondent is still subject to the civil court’s contempt powers.

Because of the criminal charges a violation may bring, it is important for a party to work with his or her attorney in order to ensure that they understand the conditions of the injunction, the severity of a violation, and what is required by the court in regard to the terms and conditions of their particular injunction.  If you have been served with a domestic violence injunction, seek the representation of a skilled and experienced Tampa domestic violence attorney immediately.

As part of the petition for protection, the petitioner can request different forms of relief including the following: injunctive relief to protect the petitioner from domestic violence; temporary exclusive use and possession of the parties’ residence; temporary exclusive use and possession of personal property, such as vehicles; temporary custody of the minor children; temporary child support; and temporary alimony.   Additionally, as part of the petition for protection, the petitioner can request that the respondent attend a batterers’ intervention program.

For the court to grant a temporary injunction for protection against domestic violence based on the initial request/petition, the court must find that an immediate and present danger of domestic violence exists.   After its review of the petition, if the court finds that an immediate and present danger of domestic violence exists, it will order an ex parte temporary injunction for protection (that means it is based just on hearing one side of the argument) which shall remain effective for a fixed period up to 15 days.

It is important to note that in the event a subsequent action for dissolution of marriage, support, or custody is filed, orders entered in the dissolution of marriage case on issues governed by Florida Statute Chapter 61 (e.g. child support, temporary support, parental responsibility) can take precedence over provisions in an injunction for protection against domestic violence.   Due to the seriousness of a domestic violence injunction, the severe effects it can have on a dissolution of marriage and the criminal liability a party may face, it is highly recommended that a party speak with and retain an expert Tampa domestic violence attorney before filing a petition for protection.

A domestic violence hearing, like any other court proceeding, can be a stressful event.   The procedures however, are not too different than other court proceedings and have many of the same procedures.    Getting an understanding of how the process of the hearing works can help alleviate some of the fears and stress that contested litigation commonly creates.

Under Florida law, the respondent to a Petition for Protection Against Domestic Violence, (often referred to as a "restraining order") is entitled to have the case heard at a return hearing.   This return hearing is held before a judge at a bench trial and without a jury.   In most jurisdictions, the judge is assigned to the domestic violence division and specifically presides over these types of hearings on a daily basis.   Like other forms of bench trials, the Florida Rules of Civil Procedure dictate the procedures of the hearing and the admissibility of evidence.

The presiding judge hears the testimony and reviews the evidence presented by the petitioner and the respondent.   It is the judge’s role to weigh the facts and evidence in order to make a determination of whether a permanent injunction should be granted.   The judge will rely on the evidence each party presents which may include; their own testimony, witness testimony, photographic and documentary evidence, and any other evidence the court deems admissible and relevant.

Because the presiding judge has had an opportunity to review the allegations in the Temporary Injunction for Protection Against Domestic Violence, the judge has a familiarity of what the petitioner is relying on as a basis for the request for a permanent injunction. Unlike other bench trials, an opening statement of the case issues by the parties is not usually given.   It is the petitioner’s burden to establish that he or she is either a victim of domestic violence or that there is reasonable cause to believe there is imminent danger of the petitioner becoming a victim of domestic violence.   In order to attempt to meet that burden, the petitioner presents the case first and should be prepared to introduce all evidence to the court upon which the petition is based.

The respondent will be given an opportunity to cross-examine each of the petitioner’s witnesses and challenge all evidence presented.   Additionally, at the conclusion of the petitioner’s case, the respondent will be given an opportunity to present their side of the case and present evidence on what the respondent believes is an accurate representation of the events in question.  

At the conclusion of the hearing, the judge may allow each party to present a closing argument.   This closing argument provides the parties one last opportunity to make a persuasive argument as to why a permanent injunction should be granted or why the temporary injunction should be dismissed.   In most cases, if the judge finds there is sufficient evidence to make the injunction permanent, the judge will immediately issue his ruling and impose the terms and conditions of a permanent injunction.

The terms and conditions of a permanent injunction can have a serious impact on the daily life of both the petitioner and respondent.   The impact can include limitations on contact with their minor children, contact with their spouses, conditions regarding support obligations, conditions regarding court ordered counseling, and other serious sanctions.   Because the outcome of a domestic violence hearing can have such an impact on an individual’s life, it is recommended that each party seeks an experienced Florida domestic violence lawyer to represent their best interests before the court.

Domestic violence is a sad part of the breakup process for far too many couples.  The term is defined in the Florida statutes as, “…any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.”  The most common instances involve one person hitting the other, choking the other or blocking the other from leaving a room or a house.

You don’t have to be married to be considered family or household members.  The statute includes in the definition “spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family or who have resided together in the past as if a family, and persons who are parents of a child in common regardless of whether they have been married.  With the exception of persons who have a child in common, the family or household members must be currently residing or have in the past resided together in the same single dwelling unit.”

If you meet these requirements, you can file for a domestic violence injunction.  A domestic violence injunction is a court order that subjects the other person to criminal charges if that person comes around you or contacts you while the injunction is in effect.

Bottom line:  Don’t take chances with your safety.  In an emergency, call 911.  If you have questions, call an expert Tampa divorce lawyer to discuss whether your situation qualifies as one where you can get a domestic violence injunction.