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January 3, 2011

Is a hearing required before a court can vacate temporary injunctions against domestic violence?

The issue of vacating temporary injunctions against domestic violence was dealt with in Schock v. Schock, 979 So.2d 1201 (Fla. 4th DCA 2008).

In this case the father had obtained injunctions against his child's mother, along with another one against her boyfriend. The allegations made included neglect and abuse against his daughter. The duty judge found the allegations appropriate for the issuance of an injunction, that the child involved was the victim of domestic violence, and was in immediate and present danger, and he issued the orders accordingly.

In response to all this, the mother filed an Emergency Motion For Return of Child and Change of Custody in the dissolution of marriage action that had been filed. Two days after the mother had filed her motions, the trial judge assigned to the divorce case entered two orders vacating the injunctions that had been previously entered by the duty judge.

The judge decided on his own that the allegations made by the father in his application for an injunction against the child's mother were conclusory, and those which were made against the boyfriend were based upon hearsay.

On appeal, the trial judge was reversed. The appellate court stated that once an injunction is issued under Section 741.30, Florida Statutes, the injunction cannot be vacated without a hearing. Sanchez v. State, 785 So.2d 672, 676 (Fla. 4th DCA 2001).

As a result of this ruling, the temporary injunctions were re-instated, and the trial court was instructed to conduct an evidentiary hearing before ruling on the motions filed by the mother. See also White v. Cannon, 778 So.2d 467, 467-68 (Fla. 3rd CA 2001).

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