Posted by Nydia Streets of Streets Law in Florida Domestic Violence
A petition for protection against domestic violence in Florida must put the accused on notice of the allegations being made against him or her. This is so that the accused can prepare a proper defense. If there is an objection at a hearing to evidence being offered in support of a claim which was not included in the petition, it is ordinarily error for a court to enter an injunction based on that evidence. This was an issue in the case Wynter v. Gutierrez, 5D20-2235 (Fla. 5th DCA March 5, 2021).
The mother in this case filed a petition for injunction against domestic violence alleging an incident that occurred in August 2020 wherein the father of her child committed domestic violence against her. However, the mother testified (over the objection of the father) at the hearing regarding an incident that happened in April 2020. The court did not make any findings regarding the August 2020 incident alleged in the petition, but entered an injunction based on the April 2020 incident. The father appealed.
The appellate court reversed the injunction, holding “‘It is axiomatic that a party defending against a claim is entitled to due process, including the right to proper and adequate notice of the allegations which form the basis for the relief sought.’ [internal citations omitted]. Here, the trial court granted relief solely on the basis of objected-to testimony that was not the subject of the petition for injunction for protection. We therefore reverse and remand with directions to vacate the permanent injunction and for a new final hearing, either upon the existing petition or upon any amended petition that may properly be filed.”
A Miami domestic violence lawyer can help you understand how the law may apply to the facts of your case. Schedule a consultation to understand how.