Due Process Violations During Domestic Violence Proceedings
certain legal rights, which are known as Due Process rights. States that fail to abide by these rules and do not follow the exact course of the law when evaluating a petition for a restraining order have violated these rights. When it comes to domestic violence injunctions, there is actually a wide range of conduct that can qualify as a Due Process violation, which could in turn, justify the dismissal of a restraining order, so if you believe that your own Due Process rights have been violated, it is important to speak with an experienced Seminole domestic violence lawyer who can help protect your rights and interests.
Domestic violence petitioners and courts are required to provide those who have been accused of violence (respondents) with a certain amount of notice to prepare their cases. This includes:
- Giving respondents and their attorneys enough time to receive and assess the evidence being used against them;
- Ensuring that respondents are given a copy of all evidence, including ex-parte communications sent directly to the judge;
- Providing the parties with notice that an ex-parte hearing on a motion to dismiss an injunction will be converted into a full evidentiary hearing;
- Filing a motion, holding a hearing, or otherwise giving the parties notice of the dismissal of an injunction;
- Refraining from modifying an injunction when no motion seeking a change is filed by the parties; and
- Refraining from terminating custody and visitation in the absence of a petition requesting such relief.
To learn more about the types of rules and procedures with which courts must comply when considering a domestic violence petition, please call our office today.
Opportunity to be Heard and Obtain Counsel
Another right guaranteed by the Due Process clauses in the Fifth and Fourteenth Amendments is the opportunity to be heard when accused of domestic violence. This right has been violated when courts:
- Deny a respondent the opportunity to present evidence;
- Fail to hold a full evidentiary hearing on a domestic violence matter;
- Cut hearings short due to a backlog of cases; or
- Fail to hold a hearing on a domestic violence injunction petition or explain why allegations were insufficient to justify an order.
Respondents also have the right to obtain counsel when accused of domestic violence. One court even held that a defendant was denied due process when a trial court only gave her 20 days to obtain representation, but also required her to attend a hearing (without an attorney) before the 20 days were up.
Consult with an Experienced Domestic Violence Attorney
While most petitioners and courts abide by the rules regarding notice, evidence, and the right to counsel, violations do occur, in which case, the wronged party should be sure to seek assistance from an experienced domestic violence lawyer. To learn more about how our office can help with your own domestic violence matter and protect your Due Process rights, please call Reep Coleman & Stubbendorff at 727-330-6502 or send us an online message today.