Posted by Nydia Streets of Streets Law in Domestic Violence
After a Florida restraining order or injunction against domestic violence is entered, the party against whom the injunction has been entered usually wonders when and if it can be dissolved. There are certain circumstances under which an injunction can be dissolved as explored in the appellate case Noe v. Noe, 217 So.3d 196 (Fla. 1st DCA 2017).
An injunction was originally entered in 2000 based on an incident of domestic violence committed by the former husband while the parties were married and the former wife was pregnant. After the injunction was entered, the parties were divorced and their child was born. In violation of the stay away order, the former husband contacted the former wife to visit with their child. The former wife then allowed the former husband to visit the child in her home under her supervision despite the injunction in place. The former wife subsequently became pregnant and the child that was born had severe medical issues, causing her to begin residing with the former husband again.
The former wife maintained she felt she had no choice but to live with the former husband due to the medical issues of the youngest child. However, she eventually did move out after the former husband put the child's life in danger. The former husband was subsequently incarcerated and his parental rights were terminated. His sentence was set to expire in less than 5 years from the time of the appeal. The former wife maintained she was in fear of the former husband, and that even though he was incarcerated, she feared he would re-surface in her life once released.
Based on the evidence presented, the former husband's motion to dissolve the injunction was denied. He appealed, arguing that his incarceration was a sufficient change in circumstances that required the injunction to be dissolved. The appellate court disagreed and found the trial court did not abuse its discretion in denying the motion to dissolve - the court noted the former husband's prison sentence was relatively short, and therefore his incarceration was not a significant change that would counter the former wife's reasonable fear of again becoming a victim of domestic violence.
Simply put, trial courts have discretion to determine whether or not an injunction should be set aside. In order for the injunction to remain in place, the victim must show he or she maintains a reasonable fear that he or she will become the victim of domestic violence at the hands of the accused abuser. A consultation with a Miami family law attorney may help you determine your best options in such a case.