Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

BOARD CERTIFICATION 2023 > Domestic Violence > Flashcards

Domestic Violence Flashcards

1
Q

Who has standing to bring to seek an inj for protection against DV?

A

Any family or household member wh is either a victim of DV or has reasonable cause to believe they are in imminent danger of becoming a victim of act of DV has standing to seek a DV inj

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

What is domestic violence?

A

Any assault, aggravated assault, battery, aggravated batter, sexual assault, sexual batter, stalking, aggravated stalking, kidnapping, false imprisonment or any criminal offense resulting in physical injury or death of one family or house member by another family or house member

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

Who is a “family or house member” for purposes of DV

A
  1. spouse
  2. former spouse
  3. persons related by blood or marriage
  4. persons who are presently residing together as if a family or who have resided together in the past as if a family
  5. persons who are parents of a child in common regardless if they were ever married
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

What is the one exception to the rule that family or house members must currently reside together or resided together in past for purposes of DV

A

Parents who share a child in common

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

Is an aunt who lived with kids and cared with them for one week while mom was in the hospital fit the definition of a household member within DV

A

Yes

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Could maternal grandfather had temporary custody of grandchild seek DV injunction against the child’s biological father?

A

No, maternal grandfather did not constitute a person having a child in common with bio daddy

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

BF & GF sleep over on occasion but have separate houses, can GF seek DV injunction against BF?

A

No, they are not household members under DV

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

How can a child seek injunction against a parent?

A

By and through a parent as “next friend”

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Is there a residency requirement to seek DV

A

741.30(1)(j)

No minimum residency requirements - DV can be filed in a circuit where:
-petitioner currently or temporarily resides;
-where respondent resides;
- or where the DV occurred

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Where can DV action be brought

A
  1. Circuit where petitioner currently or temporarily resides
  2. where respondent resides, or
  3. where the DV occurred
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

When must objection to standing in a DV matter be raised?

A

Prior to entry of FJ - standing is waived if not raised at time of hearing.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

If there is a DV action pending and a subsequently entered order in a family action is entered, what happens?

A

Subsequent orders in Chapter 61 take precedence over any inconsistent provisions of a DV injunction

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Is a bond required by petitioner for entry of an injunction?

A

NO - 741.30(2)(b)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Is a petitioner prevented from seeking an injunction if they leave the household ?

A

No - not penalized for leaving to avoid DV

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

If a Petitioner filed petition for injunction, can court make the injunction reciporcal?

A

No - no mutual orders. Each have to have their own separate petition for injunction

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Is there a privilege between a victim and a domestic violence advocate?

A

90.5036
Yes - communication between DV advocate and DV victim is confidential if it is related to the incident of DV for which victim is seeking assistance and if it is not intended to be disclosed to a 3rd person other than:
1. someone who is going to further interest of victim in consult
2. persons whom disclosure is necessary to accomplish purpose for which dv advocate is consulted

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

In determining if whether petitioner has a reasonable cause to believe they are in imminent danger of becoming a victim of DV, what factors must court consider

A

The court must consider all factors alleged in petition for injunction for protection against DV including, but not limited to:
1. history of parties - threats, harassment, stalking and physical abuse
2. if R has attempted to harm P or family members or people close to P
3. if R has threatened to conceal, kidnap or harm P’s kids
4. If R has used or threaten to use weapons against P
5. If R has intentionally injured or killed family pet
6. If R has physically restrained P from leaving home or calling cops
7. If R has criminal history involving violence or threat of violence
8. existence of DV inj in other jur
9. if R has destroyed P’s personal property
10. If R has engaged in any other conduct that would lead P to reasonably believe they are in imminent danger of becoming victim

COURT IS NOT LIMITED TO THESE FACTORS WHEN DETERMINING IF PETITIONER HAS REASONABLE CAUSE

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

When can court consider ex parte temp injunction

A

When it appears to court that an immediate and present danger of DV exists and can issue ex parte pending a hearing

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

what happens if court denies a temporary injunction without a hearing?

A

court can deny a temp hearing but it must state legal grounds i.e. there is no basis for injunction and it must be memorialized by written order noting grounds of denial

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

When / why will court deny a temp inj on an ex parte basis?

A

Bc it finds no appearance of immediate and present danger but court can set a full hearing

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

What is the procedure if a temp ex parte inj is granted

A
  1. stays in place for no more than 15 days
  2. full hearing shall be set no later than when inj expires
    3.court may grant continuance before or during hearing if good cause shown by either party - even to obtain service of process
  3. service shall be made by law enforcement
  4. any inj. shall be extended in event of continuance
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

Who must serve injunction

A

law enforcement

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

What relief is possible under an ex parte temp injunction

A

1.Restrain R from committing any acts of DV against P or members of P’s family
2. no contact with P or family members
3. Award P temp exc use and possession of a shared home or exclude R from P’s home
4. specify distance R must stay away from P, the home,. school, work, kid’s school, places P goes,
5. Temp custody of kids
6.Order R to surrender fire warms
7. order any other relief necessary

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

What MUST occur for a final hearing on inj?

A
  1. must be recorded
  2. court shall allow advocate from SAO to be present with P or R
    3.upon proper notice, when it appears to court that P is a victim of DV or has reasonable cause, court can grant relief as court deems necessary whether R appears in court or not
  3. may be granted whether R shows up or not
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

How long an final judg of inj be effective?

A
  1. indefinitely until modified or dissolved by judge at either party’s request, upon notice and hearing or
  2. expire on a date certain at judge’s discretion
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

What MUST the FJ of Inc provide?

A
  1. That R cannot have firearms
  2. If they violate, it’s a misdemeanor
    3.doesn’t apply to active officers (that would conflict with fed law)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

Can a FJ of Inj established temp support for child?

A

Yes, until injunction expired

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
28
Q

Can FJ of Inj order counseling for children

A

Yes

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
29
Q

Can FJ of injunction ordr substance abuse or mental health eval for R and to seek treatment

A

Yes

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
30
Q

Can FJ of Inj established a PP

A

yes

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
31
Q

Can FJ of inj establish alimony

A

YEs

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
32
Q

When SHALL court ordered R to attend batter intervention programt

A
  1. finds R willfully violated ex parte injunction
  2. R has been convicted or had adjudication withheld ple no contest to a crime involving iolance
  3. any time in past an injunction has been entered against R with notice

UNLESS COURT MAKES WRITTEN FACTUAL FINDINGS BASED ON SUB COMP EVIDENCE AS TO WHY IT’ NOT ORDERING THIS RELIEF

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
33
Q

what must all temp and FJ indicate

A
  1. inj valid in all counties in FL
  2. law enforce may use arrest powers
  3. court retains jur over parties and matters
  4. reasonable notice and opportunity to be heard was given to R sufficient to protect due process
  5. date R was served
  6. if FJ issued, terms of tempt extended until F served
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
34
Q

How can court enforce violation of injunction

A

civil or criminal contempt and state can prosecute criminally

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
35
Q

Can court impose monetary fine for noncompliance with inj

A

yes - 741.30(9)(a)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
36
Q

What is the favored method of enforcing compliance with injunction

A

criminal prosecution

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
37
Q

what happens if violation of dv is being prosecuted criminally

A
  1. clerk shall assist P in preparing affidavit
  2. affidavit immediately forwarded to SA
  3. if allegation of crime - must be sent to LE
  4. LE to complete investigation in 20 days
  5. SA has 30 working days to determine if it will file criminal charges or prepare mtn for order to show cause
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
38
Q

What can injured party seek if R violates injunction and P suffers injury or loss

A

P can seek economic damages - including fees and costs

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
39
Q

Can a DV court adjudicate paternity

A

Only if F voluntarily executes acknowledgment of paternity in connection with DV action

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
40
Q

what presumption is created if R has criminal conviction of 3rd degree felony DV

A

Creates a rebuttable presumption against unsupervised TS

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
41
Q

What is required if a party files a DV petition for repeat violence

A

Swear under oath
1. 2 incidents of violence, 1 of which occurred within 6 months of filing petition which R committed against P or family member
2. specific facts and circumstances alleged as a basis for the relief sougth

42
Q

What is the purpose of repeat violence

A

It’s a catch all for petitioners who don’t fall under DV, dating or sexual violence

43
Q

Who has standing to file a DV injunction for repeat violence

A

Any person who is victim of repeat violence or parent or legal guardian of any minor child who is living at home and who seeks inj on behalf of kid has standing

44
Q

What is required if a parent or guardian seeking repeat violence injunction

A

-eyewitness or direct physical evidence or affidavits from eyewitnesses of specific facts and the person filing has to be a parent, stepparent, legal guardian of child & inj is against a parent OR
-reasonable cause to believe minor child is victim of repeat violence if person seeking inj against is NOT a parent, step parent or guardian of child

45
Q

When can service be made for inj

A

Any day of week - court will make sure sheriff in county were R lives with copy of petition and NOH and temp inj

46
Q

What are the TYPES of injunctions available in FL

A
  1. DV
  2. Dating
  3. Sexual
  4. Repeat
  5. Stalking
  6. Other Juvenile dependency inj against violence. risk protection injunct, protection for vulnerable adults
47
Q

If petitioner seeks temporary custody of minor child as part of temporary domestic violence injunction what must be filed

A

UCCJEA

48
Q

What is the definition of dating violence

A

individuals who have or have had a continuing and
4 significant relationship of a romantic or intimate nature

49
Q

How do we determine if individuals have r have had a continuing and 4 significant relationship of a romantic or intimate nature for purposes of dating violence

A

a. Relationship must have existed in the past six months;

b. The nature of the relationship must have been characterized by the expectation of affection or sexual involvement between the parties;

c. The frequency and type of interaction between the persons involved in the relationship must have included that the persons have been involved over time and on a continuous basis during the relationship; and

d. The term does not include violence in a casual acquaintanceship or violence between individuals who only have engaged in ordinary fraternization in a business or social context. Fla. Stat. § 784.046(1)(d).

50
Q

What is required for repeat violence

A

there must be two incidents of violence or stalking committed by the respondent, which are directed against the petition or the petitioner’s immediate family member, and one of the two incidents must have been within six months of filing of the petition.

51
Q

what element is required for a stalking injunction

A

That the result of conduct / stalking is causing “substantial emotional distress.”

52
Q

What is assault

A

An intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent

53
Q

What is aggravated assault

A

An assault with a deadly weapon without intent to kill; or with an intent to commit a felony.

54
Q

what is a battery

A

battery occurs when a person actually and intentionally touches or strikes another person against the will of the other; or intentionally causes bodily harm to another person

55
Q

What is aggravated battery

A

A person commits aggravated battery who, in committing battery intentionally or knowingly causes great bodily harm, permanent disability, or permanent disfigurement; or uses a deadly weapon

56
Q

What is sexual battery

A

means oral, anal, or female genital penetration by, or union with, the sexual organ of another or the anal or female genital penetration of another by any other object; however, sexual battery does not include an act done for a bona fide medical purpose

57
Q

What is stalking

A

A person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person commits the offense of stalking

58
Q

What is aggravated stalking

A

person who, after an injunction for protection against repeat violence, sexual violence, or dating violence pursuant to § 784.046, or an injunction for protection against domestic violence pursuant to § 741.30, or after any other court-imposed prohibition of conduct toward the subject person or that person’s property, knowingly, willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person commits the offense of aggravated stalking.

59
Q

What is kidnapping

A

The term “kidnapping” means forcibly, secretly, or by threat confining, abducting, or imprisoning another person against her or his will and without lawful authority, with intent to hold for ransom or reward or as a shield or hostage; or commit or facilitate commission of any felony; or inflict bodily harm upon or to terrorize the victim or another person; or interfere with the performance of any governmental or political function. Kidnapping also means confinement of a child under the age of 13 against her or his will within the meaning of this subsection if such confinement is without the consent of her or his parent or legal guardian

60
Q

What is false imprisonment

A

means forcibly, by threat, or secretly confining, abducting, imprisoning, or restraining another person without lawful authority and against her or his will

61
Q

What kind of jur is necessary for court to enter temp or final inj

A

personal jur over R

62
Q

Within 24 hours of court issuance of injunction issuance, the Clerk of Court shall

A

shall electronically transmit a copy of the petition, financial affidavit, UCCJEA, noticeof hearing and injunction to the requisite sheriff / law enforcement agency forpurposes of effecting service

63
Q

What happens if an ex parte petition is denied

A

a) The petition may be denied without a return hearing if there is no basis for the issuance of an injunction, but a denial of a petition for an ex parte (temporary) petition shall be by written order noting the legal grounds ford enial

b) When the grounds for denial is no appearance of an immediate and present danger of domestic violence, the petition for ex parte (temporary) injunction may be denied by the court, and the court shall set a full hearing on thepetition for injunction with notice at the earliest possible time. §741.30(5)(b).

64
Q

What happens if temp ex parte inj is granted

A

a)Any temporary injunction shall be effective for a fixed period not to exceed fifteen days.

b)The court may grant a continuance of the hearing before or during a hearing for good cause shown by either party, which shall include a continuance to obtain service of process.

c)A full hearing shall be set for a date no later than the date when the temporary injunction ceases to be effective

65
Q

What are the REQUIREMENTS FOR WRITTEN TEMPORARY AND FINAL ORDERS

A

1.Forms approved by the Florida Supreme Court shall be used for final injunctions.Fla. Fam. L.R.P. 12.610(c)(2)(A)

2.The court had jurisdiction over the parties and matter.

3.The date respondent was served with the temporary or final order, if obtainable. §741.30(6)(d)4.

4.Reasonable notice and opportunity to be heard was given to respondent sufficient to protect that person’s right to due process. § 741.30(6)(d)3.

5.Law enforcement officers may use their arrest powers pursuant to § 90.15(6) to enforce the terms of the injunction. § 741.30(6)(d)2.

6.A judgment should indicate on its face that the injunction is valid and enforceable in all counties in Florida. § 741.20(6)(d)(1).

7.Requirement for final injunctions only – a final injunction MUST on its face, indicate that it is a violation of § 790.233, and a first-degree misdemeanor, for respondent to have in his or her case, custody, possession, or control any firearm or ammunition

66
Q

WHAR ARE CONSEQUENCES FOR RESPONDENT ONCE A FINAL JUDGMENT FOR PROTECTION AGAINST DOMESTIC VIOLENCE IS ENTERED

A

1.An injunction may require no contact, limited timesharing with children, supervised timesharing, the respondent to leave the residence, and/or pay child support for the minor children or professional. (But see Caddy v. Robinson, 323 So.3d 749 (4thDCA 2021)(Timesharing order issued by family court took precedence over subsequently issued domestic violence injunction in favor or former wife against former husband that granted former wife 100% timesharing; former spouses and family court agreed to timesharing agreement whereby former husband would have custody of former spouses’ two minor children on three weekends of every month two years prior to issuance of domestic violence inunction).

2.Under the state and federal law, the respondent is prohibited from possessing firearms and ammunition.

3.Law enforcement officers or anyone employed in a position that requires the use of weapons may be affected.

4.The respondent’s current employment status or employment applications may be affected.

5.Professional licenses may be affected.

6.Entry into the military may be affected.

7.Admission to schools, colleges, universities may be affected.

8.Violation of a final injunction may affect a resident alien’s application for citizenship and may result in deportation if the respondent is not a citizen.

9.Final judgments are enforceable in all fifty states and all U.S. territories under the Full Faith and Credit Clause.

10.Violation of a final injunction may result in arrest and charge of a first-degree misdemeanor for each violation with a maximum sentence of one year under Florida law.

11.If the respondent stalks the petitioner who has an injunction against him or her, the respondent may be charged with aggravated stalking, a third-degree felony.

67
Q

The defendant pled guilty to a charge of aggravated battery with a deadly weapon and two counts of child abuse and was sentenced to prison followed by three years of probation. The defendant’s ex-wife was also granted a permanent injunction against him for domestic violence. During the defendant’s probation period, the state filed a violation of probation affidavit alleging that the defendant had committed a new criminal violation when he contacted the petitioner’s 16-year-old daughter via a Facebook “friend request.” Since this request went to the petitioner’s daughter who lived with the petitioner, the court found that there was probable cause to believe that the defendant violated his probation. The language of the permanent injunction stated: “Unless otherwise provided therein, Respondent shall have no contact with Petitioner. Respondent shall not directly or indirectly contact Petitioner in person, by mail, e-mail, fax, telephone, through another person, or in any other manner. Further, Respondent shall not contact or have any third-party contact [with] anyone connected with Petitioner’s employment or school to inquire about Petitioner or to send any messages to Petitioner – is this a violation of no contact

A

Yes

68
Q

IS mere shouting without overt acts constitute violence required for an inj?

A

No

69
Q

A man threatens to fuck up another guy and kill him - but no overt act taken - is this an assault

A

when there is no overt act or ability to carry out threat it’s not assault

70
Q

Can 2 incidences at the same time qualify for repeat violence

A

no - it has to be separate acts

71
Q

what is dating violence

A

Any person who is the victim of dating violence and has reasonable cause to believe he or she is in imminent danger of becoming the victim of another act of dating violence, or any person who has reasonable cause to believe he or she is in imminent danger of becoming the victim of an act of dating violence, or the parent or legal guardian of any minor child who is living at home and who seeks an injunction for protection against dating violence on behalf of that minor child, has standing in the circuit court to file a sworn petition for an injunction for protection against dating violence

72
Q

who has standing to file dating violence injunction

A

Dating violence is defined as violence between individuals who have or have had a continuing and significant relationship of a romantic or intimate nature. The existence of such a relationship shall be determined based on the consideration of the following factors:

  1. A dating relationship must have existed within the past 6 months;
  2. The nature of the relationship must have been characterized by the expectation of affection or sexual involvement between the parties; and
  3. The frequency and type of interaction between the persons involved in the relationship must have included that the persons have been involved over time and on a continuous basis during the course of the relationship.

The term does not include violence in a casual acquaintanceship or violence between individuals who only have engaged in ordinary fraternization in a business or social context.

73
Q

Are there jurisdictional limitations on filing dating violence

A

No, anyone can file.

74
Q

What is proper venue for dating violence

A
  1. county where R resides or
  2. where cause of action accrued
    NOT WHERE PETITIONER RESIDES
75
Q

how shall a petition for dating violence be served

A
  • The clerk of the court shall furnish a copy of the petition, notice of hearing, and temporary injunction, if any, to the sheriff or a law enforcement agency of the county where the respondent resides or can be found, who shall serve it upon the respondent as soon thereafter as possible on any day of the week and at any time of the day or night. §784.046(8)(a)1
  • A facsimile copy may be served in the same manner as a certified copy, but sheriff must verify receipt with the sender before attempting to serve it upon the respondent. §784.046(8)(a)1
  • If Petitioner requests the assistance of a law enforcement agency, the court may order that an officer from the appropriate law enforcement agency accompany the petitioner and assist in the execution or service of the injunction. Law enforcement shall accept a copy of an injunction certified by the clerk of the court, from the petitioner and immediately serve it upon a respondent who has been located but not yet served. §784.046(8)(a)2
  • The following must occur under specific time frames §784.046(8)(c):
    5. Within 24 hours after the court issues an injunction  court clerk must forward copy of injunction to sheriff with jurisdiction over the residence of the petitioner.
    6. Within 24 hours after the sheriff receives a certified copy of the injunction  sheriff must forward information regarding injunction to other law enforcement agencies electronically.
    7. Within 24 hours of service of injunction upon Respondent  law enforcement officer must forward written proof of service of process to the sheriff with jurisdiction over the residence of the petitioner.
    8. Within 24 hours after service upon the respondent and sheriff being notified  sheriff must make information regarding service available to other law enforcement agencies by electronically transmitting such information to the department.
76
Q

What is necessary to file petition for dating violence

A

Any person who is the victim of dating violence and has reasonable cause to believe he or she is in imminent danger of becoming the victim of another act of dating violence, or any person who has reasonable cause to believe he or she is in imminent danger of becoming the victim of an act of dating violence … has standing in the circuit court to file a sworn petition for an injunction for protection against repeat violence.

The Petition must allege:

(1) the specific incident or incidents of violence and describe the length of time of the relationship, whether it has been in existence during the last 6 months, the nature of the relationship of a romantic or intimate nature, the frequency and type of interaction, and any other facts that characterize the relationship.

(2) With respect to a minor child who is living at home, the parent or legal guardian seeking the protective injunction on behalf of the minor child must:

o Have been an eyewitness to, or have direct physical evidence or affidavits from eyewitnesses of, the specific facts and circumstances that form the basis upon which relief is sought, if the party against whom the protective injunction is sought is also a parent, stepparent, or legal guardian of the minor child; or

o Have reasonable cause to believe that the minor child is a victim of dating violence to form the basis upon which relief is sought, if the party against whom the protective injunction is sought is a person other than a parent, stepparent, or legal guardian of the minor child.

  • Form in §784.046 states – Petitioner genuinely fears repeat violence
  • The court can only consider the verified pleadings or affidavits unless respondent appears at the hearing or has received reasonable notice of the hearing. §784.046(6). EXCEPTION: The court may take judicial notice of prior court records when imminent danger has been alleged and it is impractical to give prior notice to the parties. §90.204(4), Florida Statutes.
  • When it appears to the court that an immediate and present danger of violence exists, the court may grant a temporary injunction which may be granted in an ex parte hearing, pending a full hearing, and may grant such relief as the court deems proper, including an injunction enjoining the respondent from committing any acts of violence.
77
Q

Are dating violence actions required to be audio recorded

A

No

78
Q

Is a hearing on dating violence mandatory

A
  • It appears the Court must grant a hearing on the Petition even if there is no basis for the Petition for repeat, dating and sexual violence
79
Q

Who has burden in DV action

A

Burden is on party seeking DV inj to provide competence substantial evidence in support

80
Q

What must occur if an inj is terminated or listed or no longer in effect

A

within 24 hours - clerk must notify sheriff or local law enforcement who received the original notice

81
Q

Is audio recording required for dating violence

A

no

82
Q

what must dating violence injunctions be predicated on

A

reasonable prospect of future violent act

83
Q

Petitioner seeks dating violence - evidence petitioner was a victim of physical violence and that dating relationship was within the last 6 months. R emailed petitioner that once he retrieved his items he would disappear from her life and there was no contact after incident that occurred after respondent hit petitioner when retrieving his personal items, petitioner’s claim that she was afraid respondent may try to hurt her again because he hurt her in the aforementioned incident. Is a dating violence inj appropriate

A

No - it did NOT meet third statutory element, reasonable cause to believe that she was in imminent danger of another act of dating violence.

84
Q

What is sexual violence

A

Sexual Violence is any ONE incident of:
1. Sexual battery;
2. A lewd or lascivious act committed upon or in the presence of a person younger than 16 years of age;
3. Luring or enticing a child;
4. Sexual performance by a child; or
5. Any other forcible felony wherein a sexual act is committed or attempted.

Any one of the incidents listed above meet the definition of sexual violence, regardless of whether criminal charges based on the incident were filed, reduced, or dismissed by the state attorney.

85
Q

Who has standing to file a sexual violence injunction

A

Any person who is the victim of sexual violence, OR

The parent or legal guardian of a minor child who is the victim of sexual violence has standing in the circuit court to file a sworn petition for an injunction for protection against sexual violence on his or her own behalf or on behalf of the minor child if:

i. The petitioner (person who is the victim, or parent or guardian of the minor child victim) reported the sexual violence to law enforcement and is cooperating in any criminal proceeding against the respondent, regardless of whether criminal charges based on the sexual violence have been filed, reduced, or dismissed by the state attorney; or

ii. The respondent who committed the sexual violence against the victim or minor child was sentenced to a term of imprisonment in state prison for the sexual violence and the respondent’s term of imprisonment has expired or is due to expire within 90 days following the date the petition is filed.

86
Q

What must petition for sexual violence allege

A

(1) Include incident report number from law enforcement or attach notice of inmate release

(2) the specific facts and circumstances alleged as a basis for the relief sought

(3) With respect to a minor child who is living at home, the parent or legal guardian seeking the protective injunction on behalf of the minor child must:

 Have been an eyewitness to, or have direct physical evidence or affidavits from eyewitnesses of, the specific facts and circumstances that form the basis upon which relief is sought, if the party against whom the protective injunction is sought is also a parent, stepparent, or legal guardian of the minor child; or

 Have reasonable cause to believe that the minor child is a victim of sexual violence to form the basis upon which relief is sought, if the party against whom the protective injunction is sought is a person other than a parent, stepparent, or legal guardian of the minor child.

Note: A petitioner for an injunction for protection against sexual violence may furnish an address to the court in a separate confidential filing if, for safety reasons, the petitioner requires the location of his or her current residence to be confidential

87
Q

When does court have jur for sexual violence inj

A

no limitation - anyone can file

88
Q

what is proper venue for sexual violence inj

A
  1. Where Respondent resides
  2. Where cause of action accrued
    NOT WHERE PETITIOER RESIDES
89
Q

where shall R of sexual violence be served

A

clerk shall give petition to LE in county here R resides and serve it ASAP ANY DAY OF THE WEEK

90
Q

Is a hearing for sexual violence mandatory

A

YES - even if there is no basis for the peititon

91
Q

Definition of stalking

A

“Stalking”: A person who wilfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person commits the offense of stalking, a misdemeanor of the first degree. At least two incidences are required.

Stalking is NOT a direct ACT of VIOLENCE as it only requires “willfully, maliciously, and repeatedly following, harassing or cyberstalking another person.” § 784.048(2). It is included among actionable violent offenses because of its documented propensity to precede violence. So, for purposes of domestic and nondomestic violence statutes, stalking is violence.

92
Q

What is cyber stalking

A
  1. To engage 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
  2. To access, or attempt to access, the online accounts or Internet-connected home electronic systems of another person without that person’s permission, causing substantial emotional distress to that person and serving no legitimate purpose.
93
Q

Who has standing to bring cyber stalking action

A

The cause of action for an injunction may be sought by any affected person.

A person who is the victim of stalking or the parent or legal guardian of a minor child who is living at home who seeks an injunction for protection against stalking on behalf of the minor child has standing in the circuit court to file a sworn petition for an injunction for protection against stalking.

94
Q

What factors are considered for cyber stalking

A

 Previously threatened, harassed, stalked, cyberstalked, or physically abused the petitioner.
 Threatened to harm the petitioner or family members or individuals closely associated with the petitioner.
 Intentionally injured or killed a family pet.
 Used, or threatened to use, against the petitioner any weapons such as guns or knives.
 A criminal history involving violence or the threat of violence, if known.
 Another order of protection issued against him or her previously or from another jurisdiction, if known.
 Destroyed personal property, including, but not limited to, telephones or other communication equipment, clothing, or other items belonging to the petitioner.

95
Q

What is proper venue for stalking

A

a petition for an injunction for protection against stalking may be filed in the circuit where the petitioner currently or temporarily resides, where the respondent resides, or where the stalking occurred. There is no minimum requirement of residency to petition for an injunction for protection.

96
Q

Is a hearing mandatory for stalking if temp denied

A

NO - but order must state no basis for injunction

97
Q

When is it appropriate for court to deny temp stalking injunction

A

NO Appearance of IMMEDIATE and PRESENT DANGER

When the only ground for denial is no appearance of an immediate and present danger of domestic violence, the petition for ex parte (temporary) injunction may be denied but the court shall set a full hearing on the petition for injunction with notice at the earliest possible time

98
Q

Are stalking injunctions required to be recorded

A

YES

99
Q

Can court award exclusive care possession or control of family pets in a DV matter?

A

Yes, see 741.30(5)(a)4.

100
Q

If DV action brought and respondent is NOT a family or household member, when should that issue be raised and what happens if it is not raised

A

Must be raised BEFORE final judgment entered and if you don’t raise it, you waive it.

101
Q

What must a respondent allege if they want to dissolve a DV injunction

A

Can move to modify or dissolve at any time and no specific allegations are required per 741.30. If they can prove that the inj no longer serves a valid purpose, court may modify or dissolve.

BOARD CERTIFICATION 2023 (20 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions