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