Domestic Violence Injunctions get a bad rap…
That’s because in large part, they are used as a means in a game played by soon to be exes in their pursuit to one up the other side by making them look like they are out of control. That said, there are times when a Domestic Violence Injunction is really needed. In a hearing on a petition for a domestic violence injunction, the court has to find that the Petitioner (the person filing the petition for an injunction) has been a victim of Domestic Violence or is in “imminent fear” of becoming a victim of Domestic Violence in Florida. Florida Statutes §741.30. Imminent fear can be defined as a real actual fear of immediate physical damage to one’s body based upon a person’s words or actions.
The court, when making its decision, can use the additional criterion listed in Florida Statute §741.30 to determine whether the Petitioner’s imminent fear of becoming a victim of domestic violence is reasonable. The statute reads: In determining whether a petitioner has reasonable cause to believe he or she is in imminent danger of becoming a victim of domestic violence, the court shall consider and evaluate all relevant factors alleged in the petition, including, but not limited to:
1. The history between the petitioner and the respondent, including threats, harassment, stalking, and physical abuse.
2. Whether the respondent has attempted to harm the petitioner or family members or individuals closely associated with the petitioner.
3. Whether the respondent has threatened to conceal, kidnap, or harm the petitioner’s child or children.
4. Whether the respondent has intentionally injured or killed a family pet.
5. Whether the respondent has used, or has threatened to use, against the petitioner any weapons such as guns or knives.
6. Whether the respondent has physically restrained the petitioner from leaving the home or calling law enforcement.
7. Whether the respondent has a criminal history involving violence or the threat of violence.
8. The existence of a verifiable order of protection issued previously or from another jurisdiction.
9. Whether the respondent has destroyed personal property, including, but not limited to, telephones or other communications equipment, clothing, or other items belonging to the petitioner.
10. Whether the respondent engaged in any other behavior or conduct that leads the petitioner to have reasonable cause to believe that he or she is in imminent danger of becoming a victim of domestic violence.
In determining whether the victim’s fear is reasonable, “the trial court must consider the current allegations, the parties’ behavior within the relationship, and the history of the relationship as a whole”. So for example, a Petitioner whose only basis for requesting an injunction was a disputed incident from three years before and a subjective fear that her anticipated request for child support might cause the Respondent to become angry was not enough to show that she was a victim of Domestic Violence or was in “imminent fear” of become a victim of Domestic Violence. In fact, the court in that case found that the Petitioner failed to present sufficient evidence that she had a reasonable fear of imminent danger of domestic violence. (Malchan v. Howard, 2010 WL 787800 (Fla. 4th DCA, 2010))
The bottom line, it’s not enough to say, I’m afraid he/she is going to hurt me. There has to be something that happened close to the date of the filing of the Petition for the Protection Against Domestic Violence. Subjective fear does not meet that threshold and simply rehashing old history by itself will not be sufficient either.