When you file for a divorce or paternity action in Fort Lauderdale, many times your lawyer will also be required to represent you in a concurrent domestic violence action. A court can issue an injunction for protection against domestic violence when a party is a victim of domestic violence or has reasonable cause to believe that he or she may become a victim of domestic violence. The court must consider current allegations, behavior during the relationship and the entire history of the relationship. In the case of Malchan v Howard, the appellate court in West Palm Beach found that the trial court abused its discretion in entering a domestic violence action.
In July 2008, the mother filed a petition that sought an injunction for protection against domestic violence in Broward. She alleged that in 2005 the father punched a wall in their home, pushed her into the wall, tried to choke her and told her that he would kill her. She did not make any recent allegations of violence or threats of violence.
At the hearing, the mother testified that she was scared of the father since she planned on filing a child support action against him in the future. She admitted that the father had not threatened to kill her or her child since 2005. The mother also testified that she had spoken to the father three weeks ago when he requested a travel with the child to Orlando, a request that she had denied.
The father had a prior criminal history. He did not own any weapons, firearms or ammunition. While he denied the 2005 incident, he saw the mother three weeks prior to the hearing and believed the mother was angry with him since he had a new girlfriend.
After the trial court granted the domestic violence injunction, the father appealed. In reversing the decision of the trial court, the Fourth District Court of Appeal found that there was insufficient evidence to support the finding of an imminent fear of domestic violence. The court reasoned that the mother’s only basis for an injunction was an incident 3 years prior and an objective fear of what would happen if she requested child support from the father. In addition, the mother did not allege any recent violence or threats of violence and the trial court neglected to consider that the current behavior of the parties was civil.