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JUDICIAL PROMISING PRACTICES GUIDE FOR DOMESTIC VIOLENCE
INJUNCTION CASES June 2019
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Contents 1. COURT AND CIRCUIT PROCEDURES ........................................... 2
Communication .................................................................... 2
Internal Procedures ............................................................... 2
Fifth Amendment Considerations ............................................... 3
2. JUDICIAL PROMISING PRACTICES .............................................. 4
Trauma Awareness ................................................................ 4
During the Hearing ................................................................ 5
3. COURTROOM SECURITY ........................................................ 7
4. TRAINING FOR JUDGES AND STAFF ........................................... 8
5. COURT ADMINISTRATION AND COMMUNICATION; SELF-HELP ............. 9
ANALYSIS OF DUTIES, OBLIGATIONS, AND REQUIREMENTS FOR DOMESTIC
VIOLENCE INJUNCTIONS .......................................................... 12
This project was supported by Contract No. LN967 awarded by the state administering office for the
STOP Formula Grant Program. The opinions, findings, conclusions, and recommendations expressed in
this publication/program/exhibition are those of the author(s) and do not necessarily reflect the views of
the state or the U.S. Department of Justice, Office on Violence Against Women.
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1. COURT AND CIRCUIT PROCEDURES Communication
a. The civil court should notify the criminal court when a civil domestic injunction is issued or modified, including a no-contact order.
b. The criminal court should notify the civil court each time a criminal case is opened that involves a family with an open case.
c. Judges should be alerted of any pending criminal cases involving one of
the parties when a family or juvenile case is opened. d. Judges on family, juvenile, and criminal benches should communicate
with each other regarding orders which may conflict—especially with regard to firearms.
e. Each circuit or county should determine the best method of
communication between its civil and criminal courts, and the written policy should be institutionalized in writing.
Internal Procedures
f. Circuits should have a criminal domestic violence division or calendar to ensure that the criminal cases are addressed promptly and should also generate compliance calendars.
g. Court staff should have access to the NCIC database to be able to
conduct national background searches on all domestic violence cases.
h. All circuits should create a policy that streamlines the referral and resolution of any post-judgment contempt or violation motions.
i. All circuits should refer parties and family members to appropriate
community services and resources throughout the court process. j. All circuits should keep their technology updated.
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k. Before each stage of the proceeding, judges should become familiar with any related cases between the parties, including, but not limited to paternity, dissolution, criminal, and juvenile dependency proceedings.
l. Judges experienced and trained in domestic violence proceedings should be able to remain in that assignment rather than being rotated every two years.
m. All “on behalf of” cases filed under chapter 741 against a biological parent should be transferred to a unified family court so that, if necessary, a chapter 39 injunction and/or dependency case can be opened to protect the children.
Fifth Amendment Considerations
n. Judges should understand the boundaries of Fifth Amendment issues and should exercise their discretion when moving forward with an injunction proceeding when there is a pending criminal matter against the respondent. Judges should consider the impact on the petitioner and witnesses. Speegle v. Rhoden, 236 So.3d 498, (Fla. 1st DCA 2018).
o. Judges should ensure that petitioners have the protections afforded by
a civil injunction during the pendency of a criminal case. Civil courts may draw a negative inference if a respondent does not testify based on the 5th Amendment; however, independent, competent evidence to support the allegations must exist. A court cannot base a ruling on a negative inference alone. Coquina Investments v. Rothstein, 2012 WL 4479057 (S.D. Fla. Sept. 28, 2012).
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2. JUDICIAL PROMISING PRACTICES Trauma Awareness a. Judges should inquire into each petitioner’s circumstances to avoid
adding to the trauma he or she has already experienced. Incarceration of or contempt charges against petitioners who fail to cooperate should be viewed as a last resort.
b. Judges should allow petitioners and witnesses to utilize certified therapy dogs while testifying, if requested.
c. Judges should be trained on the effects of domestic violence on children and adverse childhood experiences (ACES). See the Family Court Tool Kit: Trauma and Development on www.flcourts.org.
d. Judges should recognize that petitioners: o may be afraid to cooperate, even if there is a subpoena; o may fear losing their job if they must take time off from work to
attend court; and o may face transportation and child care barriers that prevent
them from cooperating.
e. Judges should recognize the short-term and long-term trauma that has led domestic violence petitioners to seek protection from the court and should treat all persons, whether children or adults, with:
o objectivity; o sensitivity;
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o dignity, and o respect.
f. Judges should encourage victims to speak with a domestic violence
advocate in the courtroom and waiting areas. Victim advocates may stand/sit with petitioners during hearings and may privately consult with them.
g. Judges should consider using an introductory video, multilingual if possible, that explains how the hearing will be conducted, including when and how witnesses may be permitted to testify, how to introduce evidence, the legal burden of proof, and available legal options, including enforcement options, post-judgment.
During the Hearing
h. Judges should address the need for an interpreter at the beginning of the hearing.
i. Judges should clearly explain alternatives to dismissal of an injunction, including enforcement and modification of no-contact, visitation, and financial support orders to litigants and encourage petitioners to privately speak with a victim advocate prior to the court dismissing a case. In the event a dismissal is entered, parties should be advised that any “no contact” clause in a criminal case remains in effect until specifically modified or deleted by the criminal judge.
j. Judges should comply with s. 741.30, Florida Statutes, which requires the court to address temporary exclusive use of the home, temporary child support, temporary spousal support, and time-sharing, at the time of the final hearing, if requested.
k. Judges should allow the litigants a reasonable opportunity to present evidence regarding parental responsibility, time-sharing, supervised visitation, temporary spousal support, and child support. Judges should not announce at the outset of the final hearing that these issues will not be considered, nor refer to “family court” or delay by referring to a general magistrate.
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l. When time-sharing issues are addressed, the court should carefully weigh respondents’ ability to safely care for and protect the children in the absence of the protective capacity of the petitioner. The court should refer children to the local certified domestic violence center or other provider for trauma counseling.
m. Judges should clearly explain the terms of the final judgment to the litigants, including requiring respondents to surrender firearms and ammunition, and/or to a complete batterers’ intervention program (BIP) or any other court-ordered counseling. Courts should attempt to have parties who are present at the final hearing acknowledge receipt of the final order in writing and provide the respondents with a current list of local service providers.
n. If the litigants are using an interpreter, the court should confirm that the litigants have understood the court’s proceedings and the court’s requirements at the conclusion of the hearing.
o. An order requiring supervised visitation or monitored exchange of children should refer the litigants to a local court-approved supervised visitation or monitored exchange program, if possible.
p. Judges should not order respondents to attend anger management,
substance abuse, or mental health treatment in domestic violence cases in lieu of batterers’ intervention programs.
q. Judges should enforce the injunction through appropriate civil and
criminal remedies and should schedule a compliance hearing for batterers’ intervention programs, surrender of firearms, child and economic support, mental health, drug abuse, and other treatment interventions ordered no later than 60 days of the order being issued and as often thereafter as needed to ensure compliance. Modification motions should be considered promptly by the court with lawful notice. The respondent should be served with the notice of the initial compliance hearing before leaving the courtroom or have it served with the final judgment.
r. Respondents should be required to provide written documentation of compliance from all applicable providers.
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3. COURTROOM SECURITY
a. Judges should use a courtroom rather than chambers for hearings with law enforcement officers present. Cases should be called separately to avoid undue embarrassment to the litigants. Staggered dockets instead of mass dockets should be utilized.
b. Court security should physically separate petitioners and respondents and their witnesses in a posted waiting area and in the courtroom to ensure that there is no verbal or physical intimidation by the respondent. Ideally, the packets served on the parties should include directions as to where in the courthouse each side should wait and steps to take with security if the petitioner feels threatened or at significant risk. Circuits should also verify that there is adequate security in place before and after the hearings.
c. If there is no ability to separate the litigants before and after the hearings, clearly marked waiting areas and color-coded seating should be used.
d. If the court becomes aware of a security risk, the judge should immediately notify law enforcement and address the security needs.
e. Petitioners should be allowed to leave the courthouse at least 15
minutes before respondents.
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4. TRAINING FOR JUDGES AND STAFF
a. Judges should be committed, engaged, and open to improving court processes and should have a desire to learn about the issues facing children and families. “…[I]t is also important that the judges assigned to this division have a commitment to this important judicial responsibility and a willingness to participate in education and training programs…” In Re: Report of the Commission on Family Courts, 588 So. 2d 586 (Fla. 1991).
b. Within the first six months of coming to the bench, a judge should complete the Family Fundamentals training. Judges should also attend a program of at least one full-day of in-person training on domestic violence provided by a national or state court program. Judges should earn continuing judicial education credit in domestic violence of at least six hours. Both in-person trainings should address identifying risk, including strangulation, lethality, and factors that could lead to escalation of violence or result in a homicide.
c. All new judges should watch a one-hour training video within their first month of judicial service that discusses how to handle first appearance hearings for respondents accused of domestic violence. This will include training on lethality, firearms, alcohol, global positioning system monitors, the issuance of written stay away orders, and modifying stay-away orders. The video should also be distributed to all chief judges with all judges being required to watch the video. Each judge shall submit written proof of compliance to their chief judge and to the Office of the State Courts Administrator.
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d. All judges should be trained on the importance of financial relief for victims of violence and how to calculate basic child support.
e. All judges newly assigned to domestic violence should consider participating in the OSCA domestic violence mentoring program, if available.
f. Judges, clerks, and court staff who work with family violence cases
should be educated on the impact of trauma and vicarious trauma. g. All judicial and non-judicial court personnel should attend training on
recognizing implicit biases, understanding the unique needs of domestic violence litigants, and correcting disparate impacts for members of disadvantaged groups.
h. All court personnel should attend ongoing, high-quality domestic violence training.
5. COURT ADMINISTRATION AND
COMMUNICATION; SELF-HELP
a. Cases involving inter-related family court issues should be coordinated to maximize use of court resources to avoid conflicting decisions and to minimize inconvenience to the families. Family Court Rules of Procedure 12.003(a). Cases involving one or more case type should be handled within the one family, one judge model.
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b. Courts are responsible for case management, including case differentiation, coordination of related cases, and case monitoring. “Case differentiation means that a case should be evaluated at the outset to determine the appropriate resources for that case and the appropriate way to handle that case. Case coordination requires that the judicial system identify all cases involving that family. Case monitoring requires a continued attention to the needs of the children and family as the case moves through the judicial system so that the appropriate court resources are made available and linkages to appropriate community resources are facilitated.” In Re: Report of the Family Court Steering Committee, 794 So. 2d 518, 529 (Fla. 2001).
c. Court staff, judges, members of the bar, social service providers, and local community leaders should collaborate to support and advise the family court. In Re: Report of the Family Court Steering Committee, 794 So. 2d 518, 534 (Fla. 2001).
d. All circuits should create a domestic violence coordinating council, where there are regular meetings with all stakeholders. Attendees should discuss current issues and encourage the implementation of nationally recognized best practices for handling interpersonal violence cases.
e. Self-help services should be provided for self-represented litigants, which includes court websites, brochures, forms, and referrals for community and legal services. In Re: Report of the Family Court Steering Committee, 794 So. 2d 518 (Fla. 2001).
f. All circuits should collect data regarding the types and number of
domestic violence and other injunctions filed, as well as and data regarding criminal domestic violence cases.
g. The court should provide a means of communication for local supervised visitation programs so that they can alert the court in writing, with copies to all parties, of substantial noncompliance with court orders or behavior that has jeopardized the children’s or vulnerable parent’s safety. Such conduct includes: parental misconduct on-site and other noncompliance with program rules, parental substance abuse, parental mental illness interfering with
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visits, and parental misconduct off-site reported to program staff, including stalking, threats, violation of probation, and arrests. Upon being noticed, the court should sua sponte hold hearings with all parties to assess the safety of the children or vulnerable parent and address the problems raised in the communication to the court. In addition, the court should require periodic written reports. Responsibility for any needed action should be defined within the circuit by written policy.
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ANALYSIS OF DUTIES, OBLIGATIONS, AND REQUIREMENTS
FOR DOMESTIC VIOLENCE INJUNCTIONS Chapter 741 Florida Statutes (2018), and Rule 12.610 and Form(s) 12.980
Florida Family Court Rules of Procedure
ISSUE OR
OBLIGATION
LEGISLATIVE
AUTHORITY
CROSS REFERENCE
OR NOTATION
AGENCY
RESPONSIBLE
Requirement of
batterer’s
intervention
program (BIP)
741.281
741.30(5)(e)
741.31(5)
741.32-325
741.30(6)(a)5
BIP program
requirements
found in 741.325
Required for all domestic violence crimes
defined under 741.28.
BIP also required if:
• respondent willfully violated injunction
• defendant placed on probation
• respondent has been convicted of, had
adjudication withheld on, or pled nolo
contender to a crime involving violence
or a threat of violence
• respondent has previously had an
injunction against them.
Exception: if the parties are not or have not
been intimate partners.
Court must provide the respondent with a list
of batterers’ intervention programs. A list is
available on www.flcourts.org 741.30(6)(a)5.
SAO;
JUDICIARY
Additional services
ordered for
respondent
741.30(6)(a) Order the respondent to participate in
treatment, intervention, or counseling
services to be paid for by the respondent.
Also order such other relief as the court
deems necessary for the protection of a
victim of domestic violence, including
injunctions or directives to law enforcement
agencies. Under this section, a judge may
include: substance abuse, mental health
assessments, follow recommendations of___
(current treating doctor or veteran’s
administration etc.) In addition, require the
respondent submit for a trauma assessment
or screening including an ACES
questionnaire and follow all
recommendations.
SAO;
JUDICIARY
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Mandatory jail
sentence
min. of 10 days – 1st
offense
15 days – 2nd
offense
20 days 3rd and
subsequent offense
741.283 If defendant is adjudicated of crime of
domestic violence and intentionally caused
bodily harm to another person.
If the crime takes place in the presence of a
child under 16 yrs. who is a family or
household member, sentence is 15 days for
1st offense; 20 days for 2nd offense; 30 days
for third or subsequent offense.
SAO;
JUDICIARY
Felony 1.5
sentencing
enhancement if
primary offense is
domestic violence
committed in
presence of a child
under 16 who is a
family household
member
See Rule
3.704(d)(23) Fla.
R. Crim. P.
Lane v. State, 973 So.2d 654 and
Cartagena v. State, 237 So. 3d 417.
SAO;
JUDICIARY
Investigation,
notice to victim of
legal rights and
remedies
741.29 • Shall assist in obtaining medical
treatment for victim.
• Shall advise victim of domestic violence
center.
• Shall provide Legal Rights and Remedies
notice to victims.
LAW
ENFORCEMENT
Warrantless arrest
powers
741.29 901.15(7,13) act of domestic violence as
defined in 741.28.
LAW
ENFORCEMENT
Consent of victim
not required for
arrest
741.29(3) LAW
ENFORCEMENT
Reporting
requirements even
if no arrest is made
741.29(2) LAW
ENFORCEMENT
Copies of reports
from law
enforcement to
certified domestic
violence center
741.29(2) LAW
ENFORCEMENT
Determination of
primary aggressor
741.29(4)(b) Discourages joint arrests. LAW
ENFORCEMENT
Violation of pre-
trial release order
(aka “no contact
order”) is a 1st
741.29(6) ALL PARTIES
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degree
misdemeanor
Specialized unit
(including attorney
and support staff)
741.2901 SAO
Preferred method
of enforcing
compliance with
injunctions is
criminal
prosecution
741.2901 Suggests that notwithstanding civil contempt
enforcement provisions in Rule 12.570, if
alleged violation meets statutory criteria,
should be treated as criminal offense.
SAO
Pro-prosecution
policy for acts of
domestic violence
741.2901(2) SAO
24 hour hearings 741.2901(3)
741.30(9)(b)
• SAO to perform a thorough
investigation of defendant’s history.
• Defendant shall be held in custody for
bail to be set by judge.
• Bail shall be determined upon
consideration of victim’s safety and the
safety of the victim’s children. (see also
Judiciary: 741.2902(1)).
SAO;
JUDICIARY
Role of judiciary
and intent of
legislature
regarding
injunctions
741.2902 • Recognize necessity of immediate
removal and danger in permitting
respondent periodic or partial access to
residence.
• Ensure parties understand penalties for
violation and fact that parties cannot
agree to amend on their own.
JUDICIARY
Civil and criminal
contempt to
enforce violation
(see enforcement
below)
741.2902(2)(f) See also Form 12.980 & 741.30(9)(a). JUDICIARY
(and indirectly,
CLERKS)
Petitions should
allege any other
pending
proceedings
741.30(1)(b) For example, paternity or dissolution of
marriage proceedings.
See Form 12.900(h) Notice of Related Cases.
PETITIONER;
CLERKS
Dissolution of
marriage
proceedings in
relation to
741.30(1)(c) Chapter 61 orders entered after the DVI take
precedence over injunctions when there is an
inconsistent provision.
PETITIONER
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injunction
proceedings
Oaths required of
all parties
741.30(1)(h) Any person, including an officer of the court,
offering evidence or records must be sworn
in. Copies of any writings must be provided
to each party and/or their attorneys.
CLERKS
No mutual orders
of protection
741.30(1)(j) ALL PARTIES
Fees and
reimbursement
provisions to clerk
741.30(2)(a) Clerk cannot assess filing fee for petition;
can seek reimbursement from Office of State
Courts Administrator with provision for
reimbursement to civil process.
CLERKS;
LAW
ENFORCEMENT
Clerks shall assist
petitioners seeking
injunctions and
seeking
enforcement for
violations
741.30(2)(c)(1) see also petition forms’ instructions. CLERKS
Clerk shall provide
simplified forms
for injunction,
modification and
enforcement with
instructions
741.30(2)(c)(2) see Forms 12.980(b). CLERKS
Clerk shall provide
privacy while
petitioner fills out
forms
741.30(2)(c)(4) CLERKS
Clerk shall provide
2 certified copies
(minimum)
741.30(2)(c)(5) CLERKS
Mandatory
domestic violence
training for clerks
as provided by Fla.
Association of
Court Clerks
741.30(2)(c)(6) CLERKS
Clerks to provide
informational
brochures as
provided by local
certified domestic
violence center
741.30(2)(c)(7) OSCA also has brochures and videos
available to assist petitioners and
respondents navigate the process.
www.flcourts.org
CLERKS;
CERTIFIED
DOMESTIC
VIOLENCE
CENTER
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Clerks to provide
statewide uniform
informational
brochures
including effect of
giving false
information on
domestic violence
741.30(2)(c)(8) CLERKS
Petition
requirements
741.30(3)(a) Shall allege specific facts of domestic
violence and relief sought.
PETITIONER;
Petition form 741.30(3)(b) Standard Supreme Court Form 12.980(a). CLERKS
UCCJA
requirements
741.30(3)(d) Regarding child issues. CLERKS
Temporary
injunction
standard for
issuance
741.30(5)(a) Immediate and present danger of domestic
violence basis for Ex Parte temporary
injunction. Relief available:
• temporary exclusive use and
possession of dwelling
• temporary parenting plan
• see others listed.
CLERKS;
JUDICIARY
Mandatory hearing
requirements for
denial of
temporary
injunction
741.30(5)(b) • If denial of temporary ex parte petition is
based upon no appearance of an
immediate and present danger, the court
Shall set a full hearing on the petition.
• Order denying temporary ex parte
injunction must be in writing (Form
12.980(b)(1)).
CLERKS;
JUDICIARY
Temporary
injunction good for
only 15 days or less
741.30(5)(c) Extension of injunction for good cause only.
Note: if temporary is dismissed, use Form
12.980(e).
CLERKS;
JUDICIARY
Relief available
after notice and
hearing
741.30(6)(a)
Form
12.980(d)(1)(2)
• Restrain respondent from domestic
violence
• Exclusive use & possession of home
• Temporary time-sharing
• Temporary support
• Order respondent to BIP
• Refer petitioner to domestic violence
center (shelter)
• If order is denied, use form 12.980(b)(2).
JUDICIARY
Duration of
injunction
741.30(6)(c) Until modified or dissolved. If modification
is sought use form 12.980(j).
CLERKS;
JUDICIARY;
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Victim’s right to
have a victim
advocate to
accompany in court
741.30(7) Indicates court shall allow if petitioner
requests.
JUDICIARY;
VICTIM
ADVOCATE
Service of process
and copy
requirements to
respondent
741.30(8)(a)(1) • Shall provide all documents to sheriff
(including notice of hearing) where
respondent is located (may be out of
County).
• Shall provide information as to where
respondent can be served.
• Shall provide physical description, etc.
CLERKS
Copies of
documents to
parties
741.30(8)(a)(3) After original service of original documents:
• Shall be certified by clerk and
delivered to parties at time of entry of
order.
• Parties may sign for and
acknowledge receipt.
• If party refuses to sign, clerk may
sign that service was effected.
• If order cannot be given at hearing,
may be mailed to last known address.
• If respondent is not present at the
final hearing when an injunction is
issued, per Florida case law, personal
service of the final injunction is
required to prosecute respondent for a
violation.
• Clerk must prepare written
certification of service for court file
and provide copy to sheriff.
CLERKS
24 hour rule 741.30(8)(c) 1) Within 24 hours of issuance, clerk must
forward to sheriff.
2) Within 24 hours of service of process,
law enforcement officer who served
must give certification to sheriff.
3) Within 24 hours of receipt of certified
copy of injunction, sheriff must make
information available to other agencies
electronically.
ALL PARTIES
Notice of service on
respondent
741.30(7)(c)(5) A petitioner may request notice of service on
the respondent.
CLERKS
Requirements
when injunction is
741.30(7)(c)(6) 24 hour notice by clerk to sheriff. CLERKS
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vacated or
terminated
Enforcement clause 741.30(9)(a) see also above 741.2902(1)(f)
• Civil contempt (i.e. compliance)
• Criminal contempt (punishment)
• Criminal prosecution
• Fines (if collected, clerk transfers to
Domestic Violence Trust Fund).
ALL PARTIES
Eight ways to
violate an
injunction
741.31(4)(a) • Refuse to leave residence
• Coming within 500 feet of school, house,
work
• Act of domestic violence
• Any other violation of injunction through
intentional and unlawful act
• Telephoning or contacting petitioner,
direct or indirect
• 100 feet of vehicle
• Defacing petitioner’s property
• Refusing to surrender firearms.
ALL PARTIES
Gun ownership 741.31(4)(b)(1) After final injunction entered, possession of
firearm is 1st degree misdemeanor.
ALL PARTIES
Maintenance of
foreign injunction
registry
741.315 Enforceable as final judgment. SHERIFF