Domestic violence caselaw update - PowerPoint Presentation

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Domestic violence caselaw update

Judge Thomas R. Eineman

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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.

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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.

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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.

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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.

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Domestic Violence Injunctions

Mere uncivil or annoying behavior not sufficient for entry of final judgment.

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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.

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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.

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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.

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Domestic Violence InjunctionsAllegations 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.

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Domestic Violence InjunctionsAllegations 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.

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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.

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Domestic Violence InjunctionsCompleted 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.

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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.

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Domestic Violence InjunctionsFinal 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).

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Domestic Violence InjunctionsInvolvement 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.

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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.

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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.

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Stalking Injunctions

An individual who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another individual commits stalking.

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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.

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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.

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Stalking InjunctionsCyberstalking: 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

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Stalking Injunctionsto 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.

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Stalking Injunctions

When request for final injunction was denied the Respondent was entitled to return of firearms previously surrendered without further evidentiary hearing.

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Stalking InjunctionsAlthough stalking by definition requires repeated acts, only one incident of stalking is required for final injunction in 1

st DCA. Contrast with other DCAs.

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Stalking InjunctionsConduct is legitimate (and hence not stalking) when there is reason for the conduct other than to harass the victim.

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Stalking Injunctions

Whether conduct causes substantial emotional distress must be evaluated using a reasonable person standard.

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Stalking InjunctionsGeneral relationship problems between neighbors such as noise, light, and other complaints and “staring” not sufficient for final injunction.

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Stalking InjunctionsRespondent denied due process when Petitioner was allowed to call additional witnesses without allowing the Respondent to cross examine the Petitioner.

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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.

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Stalking InjunctionsEx-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.

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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.

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Stalking InjunctionsRespondent denied due process when no hearing was granted regarding motion to modify or dismiss final injunction.

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Stalking InjunctionsF.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.

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Stalking InjunctionsInjunction 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.

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Stalking InjunctionsInjunction banning social media posts about a person instead of directed at a person is prior restraint of free speech. First amendment violated.

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Stalking InjunctionsProponent 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.

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Repeat Violence InjunctionsNeed two acts of “violence”, one in the last six months. “Violence” includes stalking.

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Repeat Violence InjunctionsInjunction cannot be used to compel civility and common decency. Litigants were woman’s former husband and current boyfriend.

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Repeat Violence InjunctionsMultiple 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.

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Repeat Violence InjunctionsVerbal 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.

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Dating Violence Injunctionsa) 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.

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Dating Violence Injunctions1) 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.

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Dating Violence InjunctionsPetitioner 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.

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Dating Violence InjunctionsStatute requires only that relationship is continuous, significant, and intimate. Dating relationship found where evidence demonstrated a 4 year, intimate sexual relationship between the parties.

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Dating Violence InjunctionsRespondent’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.

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Dating Violence InjunctionsPetition 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.

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Sexual Violence InjunctionsSexual 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.

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Sexual Violence InjunctionsInjunction 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.

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Judge Thomas R. Eineman

Circuit Judge

Fifth Judicial Circuit

teineman@circuit5.org