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Florida's DOMESTIC VIOLENCE BENCHBOOK June 2020

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Florida's DOMESTIC VIOLENCE BENCHBOOK June 2020 Florida’s DOMESTIC VIOLENCE BENCHBOOK June 2020 Office of the State Courts Administrator Office of Court Improvement Florida Institute on Interpersonal Violence This project was supported by Contract No. LJ990 awarded by the state administering office for the STOP Formula Grant Program. The opinions, findings, conclusions, and recommendations expressed in this publication are those of the author(s) and do not necessarily reflect the views of the state or the U.S. Department of Justice, Office on Violence Against Women. INTRODUCTION HOW TO USE THIS BENCHBOOK This benchbook approaches interpersonal violence from the perspectives of both established precedents and promising practices. It is intended for use by new and seasoned family law judges when conducting judicial proceedings. Recent Florida appellate cases are updated monthly and available on the website. The citations in this benchbook have been abbreviated to improve the flow of the text. A citation to section 741.30, Florida Statutes, appears as § 741.30. The benchbook features: Domestic Violence, Repeat Violence, Sexual Violence, Dating Violence, Stalking, and Elder Abuse Benchcards Mandatory Reporting of Abuse Checklist Colloquy for Injunction Hearings Domestic Violence Legal Outline Domestic Violence Civil and Criminal Proceedings Outlines Child Support in Domestic Violence Proceedings Comparison of Chapter 741 and 39 Injunctions Comparison of the five Injunctions for Protection Firearms and Domestic Violence Quick Reference Guide Articles and Publications Related to Interpersonal Violence Whether you use the online version or print it out and put it in a notebook, we hope you find this benchbook to be a reference you turn to often. We invite your suggestions for additions and improvements. Please provide comments and suggestions to: Kathleen Tailer, Office of Court Improvement, Supreme Court Building, 500 South Duval Street, Tallahassee, Florida, 32399-1900. You may also send comments and suggestions via email: [email protected], or phone: 850-414-1507. Upon request by a qualified individual with a disability, this document will be made available in alternate formats. To order this document in an alternate format, please contact the Office of Court Improvement, Supreme Court Building, 500 South Duval Street, Tallahassee, Florida, 32399-1900. Phone: 850/414-1507. Table of Contents DOMESTIC VIOLENCE INJUNCTION CASE PROCESS AND ISSUES ASSOCIATED WITH EACH STAGE (JUNE 2020) 1-1 DOMESTIC VIOLENCE BENCHCARD (JUNE 2020) 1-3 A. DEFINITION 1-3 B. STANDING 1-3 C. EX PARTE TEMPORARY INJUNCTIONS 1-4 D. FINAL INJUNCTIONS ISSUED AFTER NOTICE AND HEARING 1-5 E. COMPLIANCE, ENFORCEMENT, AND VIOLATIONS OF INJUNCTIONS 1-7 DATING VIOLENCE BENCHCARD (JUNE 2020) 1-9 A. DEFINITION 1-9 B. STANDING 1-9 C. TEMPORARY EX PARTE INJUNCTIONS 1-9 D. FINAL INJUNCTIONS ISSUED AFTER NOTICE AND HEARING 1-10 E. COMPLIANCE, ENFORCEMENT, AND VIOLATIONS OF INJUNCTIONS 1-11 REPEAT VIOLENCE BENCHCARD (JUNE 2020) 1-13 A. DEFINITION 1-13 B. STANDING 1-13 C. TEMPORARY EX PARTE INJUNCTIONS 1-13 D. FINAL INJUNCTIONS ISSUED AFTER NOTICE AND HEARING 1-14 E. COMPLIANCE, ENFORCEMENT, AND VIOLATIONS OF INJUNCTIONS 1-15 SEXUAL VIOLENCE BENCHCARD (JUNE 2020) 1-17 A. DEFINITION 1-17 B. STANDING 1-17 C. TEMPORARY EX PARTE INJUNCTIONS 1-17 D. FINAL INJUNCTIONS ISSUED AFTER NOTICE AND HEARING 1-18 E. COMPLIANCE, ENFORCEMENT, AND VIOLATIONS OF INJUNCTIONS 1-19 STALKING BENCHCARD (JUNE 2020) 1-21 A. DEFINITION 1-21 B. STANDING 1-21 C. TEMPORARY EX PARTE INJUNCTIONS 1-21 D. FINAL INJUNCTIONS ISSUED AFTER NOTICE AND HEARING 1-22 E. COMPLIANCE, ENFORCEMENT, AND VIOLATIONS OF INJUNCTIONS 1-22 ELDER ABUSE BENCHCARD AND EXPLOITATION OF VULNERABLE ADULTS (JUNE 2020) 1-25 A. DEFINITIONS 1-25 B. POSSIBLE INDICATIONS OF ELDER ABUSE AND NEGLECT 1-26 C. MANDATORY REPORTING 1-26 D. POSSIBLE INJUNCTIVE RELIEF 1-27 E. SEXUAL ABUSE 1-28 F. STALKING 1-28 G. EXPLOITATION OF AN ELDERLY PERSON, OR A VULNERABLE ADULT 1-28 COMPARISON OF INJUNCTIONS FOR PROTECTION (JUNE 2020) 1-31 CHAPTER 39 INJUNCTIONS (JUNE 2020) 1-41 COMPARISON OF CHAPTER 39 AND CHAPTER 741 INJUNCTIONS (JUNE 2020) 1-43 COLLOQUY FOR INJUNCTION HEARINGS (JUNE 2020) 1-45 PROTOCOL FOR INJUNCTION HEARINGS (JUNE 2020) 1-51 MANDATORY REPORTING OF ABUSE CHECKLIST (JUNE 2020) 1-53 A. WHO NEEDS TO REPORT? 1-53 B. WHAT NEEDS TO BE REPORTED? 1-54 C. WHO DO YOU REPORT IT TO? 1-55 D. WHAT HAPPENS IF YOU DON’T REPORT? 1-55 E. WHAT HAPPENS IF YOU MAKE A FALSE REPORT? 1-55 CONSEQUENCES FOR RESPONDENT ONCE A FINAL INJUNCTION FOR PROTECTION AGAINST DOMESTIC VIOLENCE IS ENTERED (JUNE 2020) 1-57 SECURITY IN FAMILY COURTS (JUNE 2020) 1-59 FIREARMS AND DOMESTIC VIOLENCE: A QUICK REFERENCE GUIDE TO FIREARM LAWS IN FLORIDA (JUNE 2020) 1-61 A. DEFINITIONS 1-61 B. SURRENDER 1-61 C. COMPLIANCE 1-62 D. SURRENDER EXEMPTION 1-62 E. PROHIBITION AGAINST POSSESSING FIREARMS UNDER CURRENT INJUNCTION 1-62 F. RECORDS CHECK 1-62 G. PROHIBITION AGAINST ISSUANCE OF CONCEALED CARRY PERMITS 1-62 H. PUNISHMENT FOR VIOLATIONS 1-63 I. LAUTENBERG AMENDMENT 1-63 J. RETENTION OF FIREARM PROHIBITION AFTER EXPUNGEMENT 1-63 Chapter 741 Flowchart 1-64 ADDITIONAL RESOURCES (JUNE 2020) 1-65 A. FAMILY COURT TOOLKITS 1-65 B. OTHER HELPFUL RESOURCES 1-65 DOMESTIC VIOLENCE: STALKING LEGAL OUTLINE (JUNE 2020) 2-1 A. DEFINITIONS 2-1 B. ISSUES 2-2 DOMESTIC VIOLENCE OVERVIEW (Updated 2020) 2-10 A. DOMESTIC VIOLENCE – BACKGROUND AND DEFINITIONS 2-10 B. FLORIDA STATE LAW 2-11 C. Other Types of Injunctions Available in Florida 2-12 D. DOMESTIC VIOLENCE DEFINITIONS 2-13 DOMESTIC VIOLENCE COURT: CIVIL PROCEEDINGS (JUNE 2020) 3-1 A. VALID ESTABLISHMENT OF DOMESTIC VIOLENCE COURTS 3-1 B. JURISDICTION OF DOMESTIC VIOLENCE COURTS 3-1 C. PARTIES/STANDING/RESIDENCY 3-3 D. PROCEDURAL REQUIREMENTS FOR CLAIMS 3-7 E. SUBSTANTIVE REQUIREMENTS FOR CLAIMS 3-15 F. EX PARTE TEMPORARY INJUNCTIONS 3-22 G. RELIEF GRANTED IN TEMPORARY DOMESTIC VIOLENCEINJUNCTIONS 3-26 H. FINAL INJUNCTIONS 3-27 I. RELIEF GRANTED IN FINAL DOMESTIC VIOLENCE INJUNCTIONS 3-30 J. FACTORS THE COURT MUST CONSIDER WHEN ENTERING AN INJUNCTION 3-33 K. ADDITIONAL PROVISIONS WHICH MUST BE INCLUDED IN BOTH TEMPORARY AND FINAL INJUNCTIONS 3-38 L. SERVICE OF FINAL INJUNCTIONS 3-39 M. ADDITIONAL REMEDIES 3-40 N. SUBSEQUENT ACTIONS 3-42 O. CROSSOVER CASES/RELATED CASES 3-45 P. HOUSING - FEDERAL HOUSING PROTECTIONS FOR VICTIMS OF DOMESTIC VIOLENCE, DATING VIOLENCE, AND STALKING 3-52 Q. ANCILLARY MATTERS 3-54 R. APPELLATE REVIEW 3-55 S. ENFORCEMENT 3-56 DOMESTIC VIOLENCE COURT: CRIMINAL PROCEEDINGS (Updated 2020) 3-69 A. JURY INSTRUCTIONS AND JURORS 3-69 B. WARRANTLESS ARREST POWERS 3-71 C. IMMUNITY OF LAW ENFORCEMENT UNDER FLORIDA STATUTES: 3-73 D. VICTIM’S RIGHTS 3-73 E. BURGLARY 3-76 F. PARENTAL DISCIPLINE/BATTERY ON A CHILD 3-77 G. CHARGING AND PROSECUTING 3-78 H. DOUBLE JEOPARDY 3-81 I. PREPARATION FOR FIRST APPEARANCE SUBSEQUENT TO ARREST FOR VIOLATION OF AN INJUNCTION 3-84 J. DOMESTIC VIOLENCE PRETRIAL RELEASE/DETENTION 3-84 K. BAIL 3-88 L. PRETRIAL INTERVENTION 3-90 M. PROBATION 3-93 N. JAIL 3-96 O. SENTENCING 3-97 P. VIOLATION OF PROBATION OR INJUNCTION 3-99 Q. EXPUNCTION OF CRIMINAL HISTORY IN DOMESTIC VIOLENCE CASES 3-103 R. PROSECUTOR’S RESPONSIBILITY DEALING WITH A THREAT OF PERJURY OR CONTEMPT 3-103 S. PROMISING PRACTICES 3-104 DOMESTIC VIOLENCE: EVIDENCE (JUNE 2020) 4-1 A. PRIVILEGES APPLICABLE TO DOMESTIC VIOLENCE 4-1 B. ALLOCATION OF DECISION MAKING/FINDER OF FACT 4-2 C. CONFIDENTIAL RECORDS 4-3 D. DISCOVERY 4-3 E. JUDICIAL NOTICE 4-3 F. BATTERED SPOUSE SYNDROME (BSS) or (BWS) 4-4 G. STATEMENTS BY WITNESSES: FLORIDA RULE OF CRIMINALPROCEDURE 3.220(B)(1)(B) 4-5 H. STATEMENTS BY VICTIMS 4-7 I. HEARSAY 4-8 J. HEARSAY EXCEPTIONS - § 90.803 4-9 K. NON-HEARSAY (EXCLUDED FROM DEFINITION OF HEARSAY) 4-21 L. EXCULPATORY EVIDENCE (BRADY VIOLATION) 4-26 M. WILLIAMS RULE/SIMILAR FACT EVIDENCE 4-30 ABUSE LATER IN LIFE (JUNE 2020) 5-1 A. FACTS AND STATISTICS 5-1 B. SYMPTOMS OF ABUSE 5-2 C. FLORIDA LAW: PLEASE ALSO REFER TO THE ELDER ABUSE BENCHCARD 5-3 D. ISSUES AND SOLUTIONS 5-5 E. CONCLUSION 5-6 F. REFERENCES WITHIN THIS ARTICLE 5-6 G. ADDITIONAL RESOURCES 5-7 ANIMALS AND INTERPERSONAL VIOLENCE: WHEN THEY ARE IN DANGER AND HOW THEY CAN HELP DURING PROCEEDINGS (JUNE 2020) 5-9 A. THE LINK BETWEEN ANIMAL ABUSE AND INTERPERSONAL VIOLENCE 5-9 B. APPLICABLE FLORIDA STATUTES 5-9 C. WHAT CAN THE COURT DO? 5-10 D. CONCLUSION 5-11 E. REFERENCES 5-12 F. RESOURCES: 5-12 SUPPORT IN DOMESTIC VIOLENCE CASES, INCLUDING CHILD SUPPORT (JUNE 2020) 5-13 A. GENERAL CONSIDERATIONS 5-13 B. INTAKE AND PRETRIAL PROCEDURES 5-13 C. COURT PROCEEDINGS AND ORDERS 5-14 D. FOLLOW-UP AND COMPLIANCE 5-16 E. EXTENSIONS, MODIFICATIONS, AND TERMINATION OF INJUNCTIONS 5-17 F. REFERENCES AND RESOURCES 5-18 DOMESTIC VIOLENCE AND THE UNITED STATES MILITARY (JUNE 2020) 5-19 A. RECENT MEDIA COVERAGE OF DOMESTIC VIOLENCE IN THE MILITARY 5-19 B. REALITY 5-20 C. ISSUES 5-20 D. UNDER DEPARTMENT OF DEFENSE POLICIES, A COMMANDER MUST: 5-20 E. COMPARISON OF MILITARY PROTECTIVE ORDERS (MPO) AND CIVIL INJUNCTIONS (CIVIL PROTECTIVE ORDER OR CPO) 5-21 F. KEYS TO SUCCESS 5-22 G. REFERENCES WITHIN THIS ARTICLE 5-22 H. ADDITIONAL RESOURCES 5-23 ELECTRONIC STALKING AND INTERPERSONAL VIOLENCE (JUNE 2020) 5-25 A. DEFINITIONS 5-25 B. COMMON METHODS OF ELECTRONIC STALKING 5-26 C. CRAFTING COURT ORDERS 5-30 D. REFERENCES AND RESOURCES 5-31 TRAUMA-INFORMED JUSTICE (JUNE 2020) 5-33 A.
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