Tips on Fighting a False Restraining Order in Florida

Victims of domestic violence have the right to file a restraining order in the state of Florida to protect themselves and their minor children against physical and sexual abuse. Usually, the person who petitions for this order is doing so legitimately. However, some people fraudulently claim abuse when none is present. This can not only ruin an individual's reputation, but can affect them negatively in other ways.

Florida calls a restraining order an "injunction for protection." This civil court order restricts a person from harming or threatening harm against another person. Its purpose is to legally ban the abusive person from coming into contact with the victim and their children in various ways, including by phone, email and in person. An injunction can last from a few days to a number of years, depending on the circumstances of the case.

If the court feels there is an immediate threat to the victim, it will secure a temporary injunction before the date of the hearing for the final order. If an abuser violates the order, the victim should call 911 if they are in immediate danger and contact the court clerk in their area to file a violation affidavit.

Florida separates order protection into four categories, depending on the circumstances of a case, including what behaviors took place by the alleged abuser and how they and the victim know each other. They are:

• ​Domestic Violence:​ This order relates to people related to the victim by blood or marriage and parties who are or never were married, but intimately involved.

• ​Dating Violence:​ This order applies to parties who have dated in the past six months, expected sexual involvement with the other person and interacted with them on a continued, frequent basis during that time.

• ​Sexual Violence:​ This injunction applies if circumstances do not meet the criteria for domestic violence, and the victim alleges the abuser committed one of the following: sexual battery, lewd and lascivious acts on or in front of a minor under 16, the luring or enticement of a minor or requiring them to perform sexually. The victim must report the abuse to law enforcement and cooperate with any criminal proceeding against the abuse to gain this type of injunction.

• ​Repeat Violence:​ The courts use this order when none of the other types apply. It covers abuse from coworkers, neighbors, students and relatives who have never lived together and requires at least two incidents of physical or threatened violence or stalking. Incidents must have taken place in the past six months.

Although most alleged victims who apply for restraining orders in Florida do so for genuine reasons, some can be dishonest. Sometimes, a person accused of domestic violence has not committed a crime at all, and the alleged victim may try to use a restraining order in a manipulative manner. They may do this to play off a court's sympathy and skew the outcome of the hearing in their favor.

Often, protection orders affect things like child and spousal support, custody or visitation rights. An alleged victim may also use the order as a way to get around matters of family law.

For example, a wife finds out her husband has an affair and they break up. His behaviors don't meet the definition of domestic violence, but she files for a restraining order out of anger, claiming domestic abuse. Or perhaps a person wants a co-tenant out of their house but doesn't want to undergo a lengthy and costly eviction process and files for a restraining order to hasten their move. A dishonest individual can make false accusations for any number of reasons.

There are often serious consequences for the alleged abuser when someone secures a protection order against them under pretense or false allegations. It can permanently disrupt an innocent person's life. They may have to relocate, change their day-to-day existence to avoid the petitioner or lose time with their children.

An untrue accusation can affect their reputation and implicate them in criminal behavior going forward. However, the accused person does have the right to make a case for their innocence.

There are instances in which a court issues a temporary restraining order when there is no need for one. In Florida, a judge issuing the order may err on the side of caution and feel it is more beneficial to provide a victim with the security of a civil injunction than to make the mistake of not helping them in their time of need.

An individual who wishes to fight the issuance of a restraining order should consult a lawyer to help prepare their case. They will need to pull evidence together to prove their innocence at the court hearing. Some elements may include their own testimony or they can call witnesses to testify on their behalf.

They may find it necessary to call an expert witness who is an independent third party and an expert in their field. The alleged abuser can also show physical evidence supporting their case if they have it.

The respondent can also use documents such as emails, letters, photographs or text messages to show that the accusations the petitioner or accuser has made against them are false. Finally, they can show demonstrative evidence, such as an illustration, to prove they are not a domestic abuser. For example, the drawing they use may show the position of the abuser and victim during the incident that supports their claims of innocence.