Lack of Jurisdiction for Domestic Violence Injunction

Motion to Dismiss Injunction for Protection for Lack of Jurisdiction

At the Sammis Law Firm our domestic violence attorneys only represent respondents in injunction or restraining order cases. In other words, with very few exceptions, we only defend people who have been accused of domestic violence.

One common defense when the respondent is served with the paperwork while he resides out of state is the "lack of jurisdiction" defense. Contact a restraining order attorney in Tampa, FL, for cases throughout the Greater Tampa Bay area including Hillsborough County, Clearwater or St. Petersburg, Pinellas County, Bartow, Polk County, Dade City or New Port Richey, Pasco County, Brooksville, Hernando County, or Bradenton, Manatee County, Florida.

Many individuals call us because they were served with the petition while they resided out of the State of Florida. They believe the action is unjust and want aggressive representation. Additionally, many of our clients want to avoid going to the State of Florida to defend the action on jurisdictional grounds because of the inconvience and expense of traveling out of state.

Common Scenerio

Consider a common scenerio that presents itself in domestic violence injunction for protection cases in Florida: A couple living in another state are having marital problems. The wife wants to file for divorce. In order to gain an unfair or improper advantage in the divorce case, the wife decides to flee her home state with the children and relocates to the State of Florida.

When the husband is finally able to locate his wife and children in the State of Florida, the wife has a problem. She has fled the home state with the children to live in Florida. She knows the divorce will be decided by a judge in the home state and the court there will not look favorably on the fact that she uprooted the children and took off to Florida. The wife is desperate to explain her actions in moving out of state so she runs to the local courthouse and files for a restraining order or an injunction for protection against domestic violence alleging that she does not want her husband to contact her or her children because she is in fear of a future act of domestic violence.

The husband is served with the injunction in his home state and is surprised to learn that he is required to appear for a hearing in Florida. In many of these Florida domestic violence injunction for protection or restraining order cases, the husban d may decide to file a motion to quash service of process and a motion to dismiss based on lack of personal jurisdiction and subject matter jurisdiction.

Special Venue and Residency Rules for Orders for Protection

Pursuant to Florida Statute 741.30(1)(j), "a petition for an injunction for protection against domestic violence may be filed in the circuit court where the Petitioner currently or temporarily resides, where the Respondent resides, or where the domestic violence occurred. There is no mimium requirement of residency to petition for an injunction for protection.

Jurisdiction and Showing "Minimum Contacts" When the Respondent is Served Out of State

Under Section 48.193, Florida's long-arm statute, due process requires "minimum contacts" between the State of Florida and the non-resident Husband "such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.'" Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Florida 1989).

The reason that the petitioner, or wife in this example, must establish minimum contacts is to satisfy a purposeful availment requirement which "ensures that a defenant will not be haled into a jurisdiction solely as a result of 'random,' fortuitous,' or 'attenuated' contacts." Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985). In other words, "it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conduction activities within the forum State, thus invoking the benefits and protections of the laws." Id.

The Wife may attempt to establish the "minimum contacts" by showing that the Husband called, wrote a letter, or sent a e-mail or text message to her in the State of Florida. Alternatively, the wife may aviod the minimum contact issue entirely by serving the Husband while he is in the State of Florida, even if he is only in the State to pick up the children for a visitation.

Lack of Jurisdiction over the Children When a Divorce Action is Pending in the Home State

The Court in Florida may decline to exercise jurisdiction in a case for a protective order (restraining order) for protection against domestic violence filed OBO or "On Behalf Of" the children when a divorce is currently pending in the home state.

Contact a Tampa Restraining Order Attorney to Defend You

If you have been served with a petition for an injunction for protection or restraining order filed in the State of Florida, but served on you while you reside out of state, you should contact an experienced attorney to file a motion to dismiss the injunction prior to the hearing. You may be able to avoid coming to the State of Florida to defend the action with the help of an exerienced domestic violence attorney.