INJUNCTIVE RELIEF

Question 1

What is the purpose of injunctive relief

Answer 1

1. Protect assets
2. Prevent removal of kids from jur
3. Prevent abuse/DV
4. Prevent repeat violence

Question 2

When can a writ of ne exeat be used?

Answer 2

Requires a verified pleading alleging a party is about to remove themselves or property out of jurisdiction or fraudulently conceal or convey assets to avoid an obligation owed to P

Question 3

What does the entry of a writ of ne exeat do

Answer 3

It comments the sheriff to detain R until they post a bond to provide security that they will not leave state or fraudulently convey remove or conceal property

Question 4

Can a writ of ne exeat be used for contempt to force a party to produce assets to satisfy a judgment?

Answer 4

NO - the purposes is to prevent a party from fleeing or hiding assets, not force them to produce it.

Question 5

When may a court grant a temporary injunction without written or oral notice to the other party?

Answer 5

1. The verified pleading or affidavit sets forth specific facts making it apparent that immediate and irreparable injury, lost or damage will result if notice if given to adverse party
2. lawyer for P certified in in writing any effort that have been made to give notice
3. reasons why notice should not be required

Question 6

Can evidence be used to support the affidavit

Answer 6

NO - just sworn affidavit. If evidence used, plus have e hearing where other side appears or has reasonable notice

Question 7

What must every temp injunction granted include?

Answer 7

Signed with the date and hour of entry and must be filed immediately in clerk’s office and define the injury, state findings why injury may be irreparable and give reasons why order granted without notice

Question 8

What happens if a party files motion to dissolve a temporary injunction?

Answer 8

Must be heard within 5 days after movant requests hearing

Question 9

How shall a permanent injunction be served if party failed to appear for hearing

Answer 9

Within 24 hours - it shall be be sent to LE who will personally serve R at their residence

Question 10

What must a party filing a DV injunction certify under oath

Answer 10

(1) the party against whom the injunction is sough is a spouse, former spouse, person related by blood or marriage, or person presently residing with the petitioner as if a family, or who had resided with the petitioner as a family in the past or that the parties have a child in common

(2) the party filing the petition has been a victim or fears he or she may be a victim of one of the violent crimes listed in §741.28 (which includes stalking) and

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

Question 11

How is violence defined

Answer 11

“Violence” means any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, or false imprisonment, or any criminal offense resulting in physical injury or death, by a person against any other person. §784.046

Question 12

What must a party filing an injunction for protection against repeat violence must certify under oath

Answer 12

(1) there have been 2 incidents of violence as described in §784.046(1), one of which occurred within 6 months of the filing of the petition, which were committed by the person against whom the injunction is sought, against the petition or an immediate family member of the petitioner; and

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

Question 13

Does the parent or legal guardian of a minor have standing to file a repeat violence injunction?

Answer 13

Yes but only if
-they were 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 repeat 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.

Question 14

When is a person the victim of dating violence?

Answer 14

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,

Question 15

Does a parent or legal guardian have standing to file a dating violence injunction obo minor child?

Answer 15

Yes

Question 16

How is dating violence defined

Answer 16

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.

Question 17

What must a dating violence petition allege

Answer 17

(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:

 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 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.

Question 18

Who has standing to file a sexual violence injunction

Answer 18

A person who is the victim of sexual violence or the parent or legal guardian of a minor child who is living at home 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:

(a) The person has reported the sexual violence to a law enforcement agency 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

(b) 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.

Question 19

How is sexual violence defined

Answer 19

1. Sexual battery, as defined in chapter 794;
2. A lewd or lascivious act, as defined in chapter 800, committed upon or in the presence of a person younger than 16 years of age;
3. Luring or enticing a child, as described in chapter 787;
4. Sexual performance by a child, as described in chapter 827; or
5. Any other forcible felony wherein a sexual act is committed or attempted, regardless of whether criminal charges based on the incident were filed, reduced, or dismissed by the state attorney

Question 20

What must a sex violence petition allege if OBO

Answer 20

(1) Include incident report number from law enforcement or 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.

Question 21

Who has standing to bring a stalking injunction

Answer 21

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.

Any person who fits above criteria can file.

Question 22

What is the definition of “harass”

Answer 22

To engage in a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose

Question 23

What is the definition of “course of conduct”

Answer 23

A pattern of conduct composed of a series of acts over a period of time, however short, which evidences a continuity of purpose. The term does not include constitutionally protected activity such as picketing or other organized protests

Question 24

What is the definition of a credible threat?

Answer 24

A verbal or nonverbal threat, or a combination of the two, including threats delivered by electronic communication or implied by a pattern of conduct, which places the person who is the target of the threat in reasonable fear for his or her safety or the safety of his or her family members or individuals closely associated with the person, and which is made with the apparent ability to carry out the threat to cause such harm. It is not necessary to prove that the person making the threat had the intent to actually carry out the threat. The present incarceration of the person making the threat is not a bar to prosecution under this section

Question 25

What is cyberstalking

Answer 25

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 causing substantial emotional distress and serving no legitimate purpose; 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.