THOMAS CAMPBELL, APPELLANT,
v.
LIZABETH CAMPBELL, APPELLEE
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Former husband appeals a non-final order granting former wife's temporary injunction petition filed under Florida Rule of Civil Procedure 1.610 to restrict his child visitation rights based on fear of domestic violence. The court affirms, holding that while section 741.30 of the Florida Statutes is the exclusive statutory method for obtaining domestic violence injunctions, the wife's petition substantially complied with section 741.30 requirements and the injunction was properly granted given the husband's arrest for sexual battery of their daughter.
Section 741.30 of the Florida Statutes should be the exclusive statutory method to obtain an injunction for protection against domestic violence for procedural and administrative reasons. However, where a petition substantially follows the form outlined in section 741.30(4)(b) and alleges reasonable cause to fear domestic violence as defined by section 741.30, it should be considered filed pursuant to section 741.30(2)(b). The temporary injunction protecting the wife from domestic violence is affirmed; the court also affirms protection of the children but suggests a petition filed in the wife's name individually and as next friend of her minor children would have been more appropriate.
[1] A petition for an injunction against domestic violence must be filed pursuant to Florida Statutes section 741.30, not Florida Rule of Civil Procedure 1.610.
[2] Florida Statutes section 741.30 provides the exclusive procedural method for obtaining an injunction for protection against domestic violence.
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Join FLexlaw to unlock all legal intelligence“We hold that Rule 1.610 should not be utilized to obtain an injunction against domestic violence. Our legislature specifically enacted section 741.30 of the Florida Statutes to enable a victim to seek an injunction for that purpose.”
Establishes that section 741.30 is the exclusive statutory method for obtaining domestic violence injunctions, not the general Rule 1.610.
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Join FLexlaw to unlock all legal intelligenceThe former husband was arrested for sexual battery of the couple's three-year-old daughter. The former wife filed a petition for temporary injunction …
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GARRETT, Judge.
Appellant, the former husband, seeks reversal of the non-final order that granted his former wife’s verified petition for temporary injunction. We affirm.
For whatever reason, the wife chose not to move pursuant to section 61.13 of the Florida Statutes for modification of the final judgment of dissolution. Instead, “pursuant to Florida Rule of Civil Procedure 1.610” she filed a petition for an injunction to stay or abate the husband’s “rights to [child] visitation” because of her fear of domestic violence.
We hold that Rule 1.610 should not be utilized to obtain an injunction against domestic violence. Our legislature specifically enacted section 741.30 of the Florida Statutes to enable a victim to seek an injunction for that purpose.1 For procedural reasons, section 741.30 of the Florida Statutes should be the exclusive method to obtain an injunction for protection against domestic violence. Paragraph (d) of the form petition set forth in section 741.-30(2)(b) reads, “The following describes any other cause of action currently pending between the petitioner and respondent:”. The required response to paragraph (d) will alert court personnel to the fact that the petition should be assigned (most likely by administrative order) to the trial judge assigned to hear the pending cause of action between the petitioner and respondent. Having the same judge hear both matters curtails the opportunity to “judge or forum shop.” Also, unlike Rule 1.610(a)(2), section 741.30(6)(a) allows the trial court to grant a temporary injunction ex parte without any reason given for the lack of notice. When the petitioner alleges domestic violence the reason for the lack of notice is apparent to the trial judge.
Nevertheless, we conclude that the wife’s petition substantially followed the form outlined in section 741.30(4)(b) and should be considered to be a petition filed pursuant to section 741.30(2)(b). We note that her petition in part alleged that “[petitioner has reasonable cause to fear domestic violence as defined by Florida Statute 741.30_” We interpret the “temporary custody” relief provision of section 741.-30(6)(a)2 to include sole temporary custody.
Without question we affirm the temporary injunction that protected the wife from domestic violence. The husband had been arrested for sexual battery of their three year old daughter. The wife’s petition alleged that the husband had a violent temper, behaved violently in the past, blamed her for his arrest and that he would soon be released from jail.
Because the petition only names the wife as petitioner, we question the technical legality of the order that also granted the temporary injunction for protection of the children. Although we agree that an injunction should have been granted to protect the children, we respectfully suggest that a petition filed in the name of the wife individually and as next of friend of her minor children would have been more appropriate.2 Each child, if an adult, could have on their own sought and obtained an injunction against domestic violence. The children are blood relatives of their father and had resided with him in a single dwelling unit, section 741.30(2)(e), and they, like their mother, had reasonable cause to believe that they were about to become the victims of an act of domestic violence. § 741.30(2)(a), Fla.Stat. (1989). Surely, fear that a custodial parent will be assaulted or battered by a non custodial parent constitutes an act of domestic violence as to their child.
AFFIRMED.
DOWNEY and GUNTHER, JJ., concur. . Chapter 741 entitled "Husband and Wife” is included under Title XLIII entitled "Domestic Relations."
. Florida Rule of Civil Procedure 1.210(b) authorizes a mother to sue on behalf of her infant child.
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Blackwood v. Anderson, 664 So. 2d 37 (Fla. 5th DCA 1995)…ked jurisdiction to enter an injunction against Blackwood. The provisions set forth in chapter 741, Florida Statutes (Supp.1994), provide the exclusive method of obtaining an injunction for protection against domestic violence. Campbell v. Campbell, 584 So. 2d 125 (Fla. 4th DCA 1991). In this regard, section 741.30 requires that there be a sworn petition alleging specific facts of domestic violence,1 and that, prior to an injunction after notice being entered, there must be personal service of the petition an…
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REY v. Perez-Gurri, 662 So. 2d 1328 (Fla. 3d DCA 1995)…he is about to become a victim of domestic violence. Rey has presented such proof. Perez-Gurri’s most recent threat in light of his prior violent and threatening behavior constitutes sufficient evidence of reasonable cause. See Campbell v. Campbell, 584 So. 2d 125 (Fla. 4th DCA 1991). Unlike the former husband in Trowell v. Meads, 618 So. 2d 351 (Fla. 1st DCA 1993), who was involuntarily committed to a state mental hospital at the time he threatened his former wife, Perez-Gurri had the ability to carry out hi…
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Evans v. Evans, 599 So. 2d 205 (Fla. 2d DCA 1992)…pursuant to this chapter solely on the basis that such person is not a spouse. Ch. 91-210, § 6, Laws of Fla. Nothing we say in this opinion should be construed as a comment on the effect of the statute as amended. . Compare Campbell v. Campbell, 584 So. 2d 125 (Fla. 4th DCA 1991) (because petitioner met criteria of section 741.30, her petition for injunction under Florida Rule of Civil Procedure 1.610 would be treated as petition for injunction against domestic violence).…
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