Receiving a restraining order can be devastating. Losing access to your family and legally having to stay away from them is unpleasant and can ruin the joy of the coming holiday season. However, knowing that you can fight a restraining order and regain your family can be reassuring.
Although restraining orders are sometimes necessary to protect members of a family, they are often filed frivolously, with little to no proof of violence or threat. Restraining order abuse can happen for a variety of reasons, but it typically occurs before or during divorce proceedings. According to a 2008 study mentioned on saveservices.org, 72% of civil restraining orders that were granted were based on unfounded or exaggerated claims.
During or prior to filing for a divorce, a spouse may file for a temporary or emergency injunction in order to punish or gain legal leverage over his or her partner. This can often result in the accusing party gaining exclusive access to the family home, any shared possessions within it and custody of children and pets until the charges are dismissed in court. For the accused, this can mean waiting several weeks to months for their day in court without a home or seeing his or her children.
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If you have recently been served with a restraining order in Florida, there are steps you can take to have the order of protection removed. Contact the Miami family law attorneys at The Aguilera Law Center today! Call (305) 255-FIRM.
Fighting a Restraining Order in Florida
Before fighting a restraining order, it is important to understand and obey the laws regarding injunctions. Restraining orders, also known as an injunction or order of protection, start as a temporary order, which last a maximum of 15 days in Florida. The court will set a date for your hearing within that 15 day period unless an attorney requests a continuance. This means you will likely have about a week to contact a lawyer and prepare for the hearing.
If you have been served with a temporary injunction, it is important to abide by it and consult with an attorney to prepare for your hearing, even if you feel you have a valid defense. Not obeying the temporary restraining order can risk the outcome of your case.
While still obeying the order, there are a few things you should do:
- Gather any evidence that may be relevant to the incidents mentioned in the petition. This can include videos, photos, messages, emails, phone or computer records, and physical objects. Any records that show where you were at the time of the incident are also beneficial.
- Create a list of people that could possibly serve as witnesses. Include any person who may have useful information on the incident or the petitioner. Collect the contact information of each person listed.
While collecting evidence and possible witnesses, take care not to violate the parameters of the restraining order by contacting the petitioner in any way, including through email or over the phone. If you have children together, do not try to contact the children through a relative or by visiting their school. Doing so can risk the petitioner using it against you at the initial hearing.
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Once you have everything gathered, make sure to present it to your Miami family law attorney. All the evidence and contacts you pull together will help your attorney prepare the best case for your hearing. At the hearing, the attorney will present your defense and relevant evidence to the judge, who will decide whether to dismiss the charges or grant the petitioner a permanent order.
Appealing a Restraining Order in Florida
Once the initial hearing has passed and a permanent restraining order has been granted to the petitioner, it becomes more difficult to fight. While it is possible to appeal a restraining order, there are few cases in which an appeal leads to a removal of orders.
When appealing an order of protection, evidence that was not presented at the initial hearing is not admissible. That means that if there is new evidence comes up, your attorney will not be able to use it when appealing your case. However, if you feel that you were wronged during the initial hearing, appealing your case may be the right move.
If you are ready to fight or appeal a restraining order, contact the Miami family law attorneys at The Aguilera Law Center today! Call (305) 255-FIRM.