How To Fight a Restraining Order

How Do I Fight a Restraining Order?

It can be a terrifying experience to have someone from law enforcement knock on your door and serve you with a restraining order. The thought of losing your right of movement or access to those you love can make it difficult to know exactly what to do next.

If you find yourself in a situation where you’ve been wrongly served with a restraining order (sometimes called an injunction), trying to understand how to fight it or get it dismissed is overwhelming and can feel futile. An experienced defense attorney can help you understand all of your options and how to work through the legal system to find the best options for how to get the injunction dismissed.

In this article we’ll give you some background on what an injunction is and how it’s used, and we’ll show you some ways you can work with your attorney to get an injunction removed.

Is There a Difference Between a Restraining Order and an Injunction?

The terms restraining order and injunction are often used interchangeably. The legal definition of an injunction is “a court order requiring an individual to do or omit doing a specific action. It is an extraordinary remedy that courts utilize in special cases to alter or maintain the status quo, depending on the circumstances, particularly where the defendant-party must stop its course of action to prevent possible injustice and irreparable harm to the plaintiff.”

There are three kinds of injunctions: permanent Injunctions, temporary restraining orders, and preliminary injunctions.

If you fail to comply with an injunction, you can face either criminal or civil liability. In Florida, there are five different types of protective injunctions available:

• Domestic Violence — The petitioner and respondent must be family or household members who are or were living together in the same, single dwelling unit unless they have a child together. The petitioner must show that he or she is a victim of domestic violence or reasonably believes that he or she is in immediate danger of becoming a victim.
• Sexual Violence — This protects the petitioner from the respondent who was jailed for the sexual violence against the petitioner and whose prison term has expired or is due to expire within 90 days.
• Dating Violence — This injunction requires a dating relationship within the past six months. The petitioner must show that he or she is a victim of dating violence and has reasonable fear he or she is in immediate danger of becoming a victim again, or reasonably believes that he or she is in immediate danger of becoming a victim of dating violence.
• Repeat Violence — This requires at least two incidents of violence or stalking by the respondent on the petitioner or an immediate family member; one incident must be within the past six months. The petitioner must fear repeated violence by the respondent.
• Stalking — This requires at least two incidents of stalking or cyberstalking.

Is a Permanent Injunction Really Permanent?

Permanent injunctions are issued by a court as the final judgment in a case. Typically, they’re used in instances where rewarding monetary damages will not suffice. Though it sounds very permanent and long-lasting, permanent injunctions only last as long as a court order.

According to the 15th Judicial Circuit Court of Florida, there are four guidelines to when the opposing party can seek a permanent injunction:

1. The plaintiff has suffered an irreparable injury;
2. Remedies available at law, such as monetary damages, are inadequate to compensate for the injury;
3. The remedy in equity is warranted upon consideration of the balance of hardships between the plaintiff and defendant;
4. And the permanent injunction being sought would not hurt public interest.

A permanent injunction can be severe. It can bar you from making contact with the opposing party including staying away from their home and workplace. It can also govern how you interact with your children including custody rights, visitation arrangements, and child and spousal support. Many types of the injunctions listed above can require the surrendering of firearms. They will frequently include the respondent attending intervention programs.

The timing for a permanent injunction can vary and is usually determined by the court after interviewing both parties and reviewing evidence. The 15th Judicial Circuit Court says: “If a Permanent Injunction is granted, it will be effective until it is changed or ended by the judge at either party's request, after notice and hearing, or until a specific date set by the judge (i.e., 1 year, 3 years, 5 years, etc.).”

Working with an experienced defense attorney who specializes in injunctions can help you work through legal processes in order to mitigate and understand the injunction leveled against you.

How Do I Get an Injunction Dismissed?

The first thing you need to do if you’re looking into how to get an injunction removed is to follow it. It is critical that you understand what you do not do is just as important as what you do.
If you violate an injunction while your attorney is working to get it dismissed, a court will not look favorably on your actions. Some key things to remember while you’re waiting to get your injunction removed are:

• Do not have contact with the person filing an injunction.
• Do not post about the case on social media.
• Do not discuss the restraining order with friends in a heated moment because they could be called as witnesses.

In Florida, there are a few ways to get an injunction removed. If one of the following three things happens, your attorney will be able to file paperwork to get an injunction dismissed:

• The petitioner (the person who requested the injunction) fails to appear at the hearing scheduled.
• The petitioner appeared at the hearing but desires to voluntarily dismiss this action.
• The evidence presented is insufficient under Florida law to allow the court to issue an injunction for protection against domestic, repeat, dating, or sexual violence, or stalking.

Based on the third bullet point above, there are specific requirements for a restraining order that the opposing party must prove in order to receive an injunction or order of protection. If they do not prove each of these elements, or if your attorney can successfully refute them, a judge may dismiss the restraining order.

The most direct path to removing an injunction is at the request of the petitioner. Dismissals for reasons outside those causes listed can be rare, but they are possible and they do happen.

One of the biggest keys in getting an injunction removed is to file a motion to dismiss based on a change in circumstances. You and your attorney can prove that the reasons for the injunction no longer exist — that the facts that validated the injunction in the first place are no longer true, and now it’s unnecessary to have the injunction in place. You can prove that keeping the injunction in place will be detrimental to both parties.

Know that when learning how to get an injunction dismissed, you don’t need to defend your innocence on your own. Work with Weinstein Legal to hire a defense attorney for an injunction. They will be able to help support you in building your case and will aggressively work for you to get your injunction dismissed.