How Do I Get an Injunction Removed?

Anyone who is a victim of an act of violence can file an injunction if he or she believes that he or she could be a victim of any type of violence. An injunction is also known as a restraining order.

If a legal official serves you with a petition for an injunction, you should look at this matter very seriously. It could be damaging to your permanent record even if the injunction is only temporary.

Note that injunctions are public record and cannot be removed. It may show up to most background checks even if it already expired.

What Is a Court Injunction?

An injunction is an extraordinary remedy utilized by the court where the defendant must stop its course of action to prevent any possible injustice or irreparable harm to the plaintiff. The person who petitions the court for an injunction is the petitioner and the one he or she is seeking protection against is the respondent.

An injunction is subject to the discretion of the court and the judge should consider the consequences to both parties.

The Florida Statutes outlined five different types of protective injunctions:

1. Domestic Violence. Both petitioner and respondent must be a family or household members who are or were living together in the same dwelling unless they have a child. This may refer to parents of a child in common who may or may have not married or lived together.
2. Sexual Violence. It includes sexual battery, lewd or lascivious act upon or in the presence of a person younger than 16; luring or enticing a child; sexual performance by a child.
3. Dating Violence. Both respondents and petitioner and are in a dating relationship within the past 6 months and the relationship must have an expectation of affection and not just a casual relationship.
4. Stalking Violence. It requires at least two (2) incidents of stalking or cyberstalking. Either the victim or parent or guardian of a minor living at home may file for a petition.
5. Repeat Violence. It requires at least two (2) incidents of violence or stalking by a respondent to a petitioner or an immediate family member within the past 6 months.

There are cases where the petitioner exaggerates or completely fabricates the allegations. If you are the one served with an injunction, you may require legal assistance from a seasoned defense attorney for an injunction to seek the dismissal or dissolution of the injunctive order.

How Long Do Injunctions Last?

The length of time that an injunction could last depends on the type of injunction issued by the court. There are three types of injunctions based in the length of time they are in force:

1. Temporary Restraining Order (TRO). It is a short-term measure in effect until the court issues something more enduring. It can be issued without a court hearing and without informing the opposing party. It can also be issued without notice by a federal court but cannot exceed ten days without court proceedings.

For example, in 1981, in an effort to stop the school district’s plan to dismantle a busing plan, the federal court issued a temporary restraining order against the Los Angeles Unified School District. The court feared that the school’s plan would harm the students.

1. Temporary Injunctions. Unlike TRO, temporary injunctions are slightly more enduring and require a court proceeding and notice to the opposing party. It is typically issued when the case is just beginning to prevent the defendant from doing or continuing an action that might injure the plaintiff. This type of injunction usually lasts until the end of the trial.
2. Permanent Injunctions. This is the most severe type of injunction. A judge grants this type of injunction at the end of the trial and has no set duration. It could last for several years, though the terms can change or dissolve at a later time.

The length of the permanent injunction varies from case to case. The injunction could last forever unless the issuing court modifies or dissolves it. Although either party can modify or dissolve an injunction, neither of them may change the terms without the court’s permission first.

Best Options for Dismissing an Injunction

Either the petitioner or the respondent can file a motion to dismiss, vacate, dissolve, modify or change or have an injunction dismissed based on the change in circumstances. It is applicable to all types of injunction cases like domestic violence, sexual violence or dating violence.

However, the court is most likely to grant the request of the petitioner. If the respondents make a request to dismiss or dissolve the injunction and the petitioner objects, the court is unlikely to grant the request of the respondent.

The court will take into account the current situation if there has been a change that makes the injunction unnecessary. Does the party moving for the dismissal have demonstrated changes in the circumstances for the injunction to serve no valid purpose?

If the other party objects, he/she might still have a fear of becoming a victim of violence. In this case, the court is unlikely to grant the request.

In a recent case, an Alachua County judge denied the motion of the respondent to dissolve a domestic violence injunction which is in favor of his wife. The respondent appealed that the circumstances between the two parties changed since the injunction began.

He alleged that the parties have interacted for several years without violence and that he now lives far away from the other party. The only interaction between them relates to time-sharing exchanges of their child.

The First District Court of Appeal erred in denying the motion. The appellate court reversed the order and required the court to have an evidentiary hearing.

While the trial court has broad discretion in granting, denying, modifying or dissolving an injunction, unless there is a clear abuse of the discretion, the appellate court will not disturb the trial court’s decision.

As per the above case, since a change in the circumstance is demonstrated, the court must set a hearing wherein the respondent can present evidence to vacate or dismiss the injunction.

Conclusion

If someone files for an injunction against you, it is essential to seek the legal advice of an experienced criminal lawyer to defend the charges. This kind of case has a quick turnaround that requires quick action on your end. Seek out legal counsel immediately. It would give your attorney the time to prepare and plan a strategy on how to get an injunction removed.