Florida Domestic Violence Injunctions Improperly Used as a Sword Not a Shield

August 24, 2010

As a former prosecutor and a private attorney that has represented petitioners seeking a domestic violence injunction, I appreciate their need. For someone who is truly the victim of violence, a domestic violence injunction is a necessary step in seeking protection. However, it is becoming all too common in my practice to find people on the receiving end of a domestic violence injunction when it is clear that the petitioner is improperly using the injunction process to intimidate and harass the respondent; or to gain a tactical advantage in a custody dispute.

Improper Use of Domestic Violence Injunctions During Child Custody Disputes

One of the more frequent improper uses of the domestic violence injunction process that I have seen occurs when the parties are arguing over the custody of their children. Whether already divorced or going through a divorce, parties are all too willing to file a petition for domestic violence injunction against their spouse when the allegations are frivolous at best, or as I have personally seen in my practice, outright lies. I recently represented a female client who was the respondent in a domestic violence injunction petition where the parties were also involved in a child custody dispute. After a two day hearing, it became apparent that the male petitioner was committing perjury on the stand with respect to his allegations in support of the domestic violence injunction. In denying the petition for the domestic violence injunction; the Judge commented that he was troubled by the lack of truthfulness of the male petitioner’s testimony.

Domestic Violence Injunctions Filed Because of Department of Children and Families Services Investigations

Another troubling trend that I have seen in my practice is when people are being investigated by the Department of Children and Family Services. I have actually seen petitions that state that they were urged by DCF to file a domestic violence or sexual violence injunction. I have also had petitioners tell me that they do not truly believe the allegations that they are bringing forward. However, they fear that if they don’t file the injunction, DCF will take their children away from them.

Limited Sanctions for the Filing of Frivolous Domestic Violence Injunctions

Although I cannot say that it never happens, it is very rare for the State Attorneys Office to file criminal charges against those who bring false allegations or who provide perjured testimony during domestic violence injunction hearings. Additionally, a respondent falsely accused, who is actually successful in getting a judge to deny the injunction is prohibited by law from seeking attorney’s fees. It may be possible to bring a defamation lawsuit against the petitioner; however, that type of law suit may be too expensive to litigate.

Conclusion

More and more people are using the process of seeking an injunction for protection against domestic violence as a sword instead of its intended purpose of a being used as a shield. The legislature should enact a provision in the statute which at the very least provides for respondents to seek attorney’s fees once it is established that the allegations contained in the petition for domestic violence injunction are frivolous or false.

Please call DOMESTIC VIOLENCE INJUNCTION ATTORNEY Joseph Montrone, Jr. for a free consultaion.

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