Posted by Nydia Streets of Streets Law in Florida Domestic Violence
When a parent is accused of abusing a child, it is possible to petition for a Florida domestic violence injunction on behalf of the child. If an injunction is entered, the parent who is determined to be abusive may lose his or her time-sharing. The distinction between a termination of parental rights and a permanent injunction was highlighted in the case Helweg v. Bugby ex rel. S.J.H., 1D19-4093 (Fla. 1st DCA November 4, 2020).
The parties entered a parenting plan as part of their divorce proceedings which granted the former husband 40% overnights with their two minor children. After their divorce, the former wife filed three petitions for injunction against domestic violence - one for herself and one for each of the parties’ children. In the petition concerning herself, the former wife alleged the former husband had frequent outbursts and an anger control issue. She did not allege any acts of violence or threats of violence against her. In the petitions concerning the children, the former wife alleged the former husband had grabbed the children’s arms and wrists, and yelled at them. She alleged she was concerned for the children’s ongoing mental, emotional and physical safety.
At one of four hearings on the petitions, the former wife testified that she was not in fear of the former husband and affirmed that he had not been physical with her. She stated she only filed the petition because the clerk urged her to do so to support the other petitions she filed for the children. The court took in-camera testimony of the children and heard testimony from a victim advocate who interviewed the children after the incident. Based on this, the court concluded that a permanent injunction was warranted for an indefinite time. The former husband appealed.
The appellate court agreed with the former husband that there was insufficient evidence to support an injunction for the former wife. However, with regard to the children, where the former husband argued it was a violation of his constitutional rights to essentially terminate his parental rights via the injunction, the court held “[The former husband’s] argument that the indefinite nature of the injunctions violates his due process rights highlights the apparent confusion between a permanent termination of parental rights and an indefinite domestic violence injunction. In this case, the trial court entered three injunctions pursuant to section 741.30, Florida Statutes. The "permanence" of such injunctions is not that [the former husband] has forever lost his right to contact his children, but rather a prohibition until a further order of the court modifies or disposes of the injunction.” The court concluded “It is true that the two injunctions for [the minor children] against [the former husband] remain valid and indefinitely prevent him from having contact with them. But [the former husband] may petition the trial court to modify or terminate the injunctions by showing a change in circumstance demonstrating that the underlying cause for the injunction no longer exists so that continuation of the injunction would no longer serve a valid purpose.”
If you are facing a domestic violence injunction either as a victim or the accused, contact a Miami family law lawyer to discuss the facts of your case and understand how the law may apply.