The standard process for obtaining an Injunction for Protection is explained below.
- File Petition and all the supplemental filings
- The first step to getting an Injunction for Protection is filing the Petition requesting the injunction along with any additional paperwork required. What additional paperwork is required depends on what type of Injunction for Protection you are requesting; however, all Petitions for Injunction for Protection will require you to file supplemental information describing the Respondent so that the police can find and properly serve the Respondent.
- Judicial Review of Petition
- Once the Petition has been filed it will be presented to a judge. The judge will review the petition to determine if it is “facially sufficient.” This means the judge will review the petition and assume that everything that is said in the petition is true. Then, based on that assumption, the judge will decide if those facts are enough under the law to enter the injunction. This is why effective drafting of the Petition is so important.
- Temporary Injunction for Protection
- If the judge determines that the Petition is facially sufficient, he or she will sign a Temporary Injunction for Protection. That injunction will stay in effect until the court is able to have a formal hearing on the Petition and decide whether a Permanent Injunction for Protection should be entered or if the Temporary Injunction should be dissolved. If the judge determines that the Petition is not facially sufficient then one of two things will happen. Either 1) the case will end right then and there and be closed out with the court, or 2) if the Petitioner asked for a hearing the court will schedule a hearing on the Petition, but no Temporary Injunction for Protection will be in place.
- Serve the Respondent
- If a Temporary Injunction is issued, or if one is not issued but the Petitioner requested a hearing, the Sheriff’s Office for the county the Petition was filed in will be provided paperwork to serve on the Respondent. This step is important because if the Respondent doesn’t receive proper legal notice of the Petition and the hearing then the court cannot conduct the hearing and issue an Injunction against the Respondent. Doing so would be considered a violation of the Respondent’s due process rights. Also, if the Respondent has not been served with the Temporary Injunction then the Respondent cannot be punished if they violate the terms.
- Have a formal hearing
- The final step in any Petition for Injunction for Protection is the formal hearing. Minor details in how these hearings are conducted can be different from county to county, but this is typically what to expect at a formal hearing:
- Realistically you won’t be the only person who has a hearing scheduled that day. There can be dozens of cases on the calendar at a time. The first step at these hearings is what most judges call “triage”. The judge will call up each case one at a time and make sure the Respondent was properly served and both parties are present. Assuming the Respondent was properly served the judge will ask two questions. 1) Does the Petitioner still want the Injunction for Protection? 2) Does the Respondent object to the Injunction for Protection being entered? If the answer to both of these questions is “Yes” then judge will ask both parties to take a seat and wait to have the hearing. If the Petitioner has decided they no longer want the Injunction for Protection the judge will simply dismiss the petition and dissolve any temporary injunction that might be in place. If the Respondent does not object to the Injunction for Protection being entered then the judge will talk with the parties about an appropriate amount of time for the injunction to be in place and any appropriate conditions.
- If a hearing is required usually the hearing can be done that same day, however, sometimes a hearing will need to be continued to a different day. Reasons for that could be include the Petitioner or Respondent needing more time to hire an attorney, prepare evidence, or subpoena witnesses. If there is a Temporary Injunction for Protection in place the judge will decide whether the Temporary Injunction for Protection needs to be amended in any way, and the Temporary Injunction will remain in effect until the hearing is held.
- During the hearing the Petitioner has what is called the “burden of proof.” This means it is the Petitioner’s responsibility to present enough evidence to prove to the judge that the allegations in the Petition are true and warrant an Injunction for Protection. To do this the Petitioner can testify themselves, call witnesses, or present evidence (such as photos, videos, audio recordings, or documents). There are rules that control what evidence can be shown to the judge and the requirements of how to admit the evidence. These rules are called Rules of Evidence. If the judge determines the Petitioner did not present enough evidence to meet their burden the judge will deny the Petition for Injunction for Protection and the Respondent does not have to do anything else. If the judge determines the Petitioner did present enough evidence, then the Respondent has the opportunity to present their own evidence to convince the judge the allegations are not true or that an Injunction for Protection should not be issued. The judge will decide whether or not to enter the Order for Injunction for Protection and what the appropriate conditions are.
If you are in need of an Injunction for Protection, contact us to set up a consultation with one of our attorneys, (727)954-3720.
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