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Domestic Violence and Injunctions for Protection

The most common legal step to protect a person against domestic violence involves petitioning the court to issue an injunction, also called a restraining order.

A domestic violence injunction is a court order that makes it unlawful for a person to make contact with the one requesting the injunction (called the petitioner), come within a certain distance of the petitioner or the petitioner's residence (regardless of who owns the home), and to possess a firearm. The court can also order a party to stay away from the petitioner's place of employment, school, or other place frequented by petitioner or family.

There are a number of different kinds of injunctions available:

  1. Injunction against domestic violence
  2. Injunction against repeat violence
  3. Injunction against dating violence
  4. Injunction against sexual violence

All of these injunctions are obtained by filing a petition for the particular injunction and having a hearing in front of a judge. The court may grant an emergency temporary injunction on an ex parte (only one party present) basis if an immediate and present danger of domestic violence, repeat violence, dating violence, sexual violence, or stalking exists. A temporary injunction is only effective for 15 days and during this time the court must hold a full hearing.

At the hearing, the court will make a determination whether sufficient grounds exist to grant the injunction. The grounds that must exist depend upon the type of injunction (domestic, repeat, dating, sexual, or stalking) sought by the petitioner. If the grounds do not exist (or they are not properly communicated to the judge) the injunction may be denied.

Injunction against domestic violence

A court may issue an injunction for protection against domestic violence when it appears that the petitioner is either the victim of domestic violence or has reasonable cause to believe he or she is in imminent danger of becoming a victim of domestic violence. In determining whether the petitioner's belief of imminent danger is reasonable, the court will consider the current allegations, the parties' behavior within the relationship, and the history of the relationship as a whole.

Some of the factors that the court will consider when determining whether to grant an injunction against domestic violence include:

(1) The history between the petitioner and the respondent.

(2) Attempts by the respondent to harm the petitioner or family.

(3) Threats by the respondent to kidnap or harm the petitioner or petitioner's children.

(4) The respondent injuring or killing a family pet.

(5) Threats by the respondent to use weapons to harm the petitioner or family.

(6) Whether the respondent has physically restrained the petitioner .

(7) Whether the respondent has a criminal history involving violence.

(8) The existence of a previous injunction for protection against respondent.

(9) Whether the respondent has destroyed personal property of the petitioner.

(10) Any other behavior that leads the petitioner to reasonably believe that there is an imminent danger of domestic violence.

Injunction Against Repeat Violence

“Repeat violence” must involve two incidents of violence or stalking committed by the respondent, one which must have been within six months of the filing of the petition. The violence must be directed against the petitioner or the petitioner's immediate family. The term "Violence" means "assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any other criminal offense resulting in physical injury or death"

Injunction Against Sexual Violence

“Sexual violence” means any one incident of: sexual battery, a lewd or lascivious act committed upon or in the presence of a person younger than 16 years of age, luring or enticing a child, sexual performance by a child, or any other forcible felony where 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.

Injunction for Protection Against Dating Violence

“Dating violence” means 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
(3) The frequency and type of interaction-- the persons must have been involved on a continuous basis during the course of the relationship.

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