Posted by Nydia Streets of Streets Law in Florida Domestic Violence
A petition for protection against domestic violence can be filed on behalf of a minor child who is the victim of abuse. When filing such a petition it is important to follow rules regarding the submission of evidence to the court to avoid the loss of important protection for a child. We see this play out in the case Hussey v. Lara, ex. rel., 3D18-259 (Fla. 3d DCA April 10, 2019).
A mother sought an injunction on behalf of her 9-year-old daughter against the child’s paternal uncle. The mother alleged that while the child was staying with the uncle and his wife, he committed sexual violence against the child. At a hearing on the mother’s petition, the child did not testify and the mother was the only witness. The mother did not have a lawyer. Hearsay objections about what the child told the mother were sustained during the trial. The uncle did not testify and asserted his Fifth Amendment rights because there was a pending criminal case against him regarding the same alleged incident.
The trial court entered an injunction indefinitely ordering the uncle to stay away from the child. The uncle appealed arguing it was error for the trial court to enter the injunction without competent, substantial evidence. The appellate court agreed with the uncle holding, “We are constrained to reverse the final order because there was insufficient admissible evidence to support it. To support granting an injunction under section 784.046, Florida Statutes, a petitioner must prove the statutory elements by competent, substantial evidence. Schutt v. Alfred, 130 So. 3d 772, 774 (Fla. 3d DCA 2014). The ‘evidentiary requirements present in section 784.046(4)(a)1. [state] that the petitioner must be an eyewitness, provide direct physical evidence, or provide an eyewitness affidavit to the sexual battery, to obtain an injunction for protection.’ Caldwell v. Caldwell, 257 So. 3d 1184, 1186 (Fla. 5th DCA 2018). In this case, Ms. Lara did not present any such evidence.”
Because these types of cases are serious and can be lost on technical grounds it is important to seek the counsel of an attorney when proceeding. A consultation is the place to get started to understand your rights and remedies.