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Florida Bar Journal

Restraining Justice: How Florida Can Better Aid Pro Se Survivors of Domestic Violence with Appeals of Injunction for Protection Cases

Appellate Practice

“Lawyers have a license to practice law, a monopoly on certain services. But for that privilege and status, lawyers have an obligation to provide legal services to those without the wherewithal to pay, to respond to needs outside themselves, to help repair tears in their communities.”[1]

Abuse between intimate partners, especially domestic violence,[2] is a nationwide epidemic that often goes unreported.[3] In Florida, there were 106,979 reported domestic violence offenses in 2017:[4] 162 of these offenses were domestic violence-related murders;[5] 18 of these reported offenses were manslaughters;[6] 1,580 of these offenses were rapes;[7] 16,657 of these reported offenses were aggravated assaults; and 85,721 were “simple assaults.”[8] One-hundred eighty-nine of these reported offenses included aggravated stalking and 369 involved stalking,[9] and 1,521 of these reported offenses involved threats and/or intimidation.[10] Approximately 75% of women who are killed by their abusers “are murdered when they attempt to leave or after they have left an abusive relationship.”[11] The statistics are clear — survivors of domestic violence are in danger.

Many survivors[12] who finally muster up the courage to report domestic violence and seek help through legal avenues are either indigent or have no access to funds due to financial control by their abuser.[13] What is currently being done to aid survivors of domestic violence who cannot afford an attorney, who need legal assistance in the trial and appellate courts? The answer: It appears not nearly enough is being done in Florida (yet).

This article focuses on how Florida’s statutes and appellate processes can be modified to better assist pro se survivors of domestic violence with appeals of injunction for protection cases. Currently, Florida has statutory frameworks in place to assist survivors who seek to file a petition for what is legally known as an “injunction for protection,” but is more colloquially referred to as a restraining order.[14] In the appellate context, certain legal formalities act as obstacles to survivors who seek to appeal or defend civil court decisions regarding injunctions for protection pro se.[15]

Injunctions for Protection

An injunction for protection is a civil court order that directs a specified party, known as the “respondent,” not to have any contact with the filing party, known as the “petitioner.”[16] There are five bases for which a petitioner may file a petition for an injunction for protection in Florida: 1) domestic violence; 2) dating violence; 3) sexual violence; 4) repeat violence; and 5) stalking.[17] While the statutory requirements for the five types of injunction petitions are similar in some respects, each type of injunction petition has different requirements as to the petitioner’s relationship with the respondent and the behavior required for a judge to grant that petition.[18]

The statutes governing injunctions for protection in Florida do not require either the petitioner or respondent to be represented by an attorney, nor is there a statutory right to an attorney in injunction for protection proceedings.[19] Either party may hire an attorney if they have the financial wherewithal to do so. Although some jurisdictions have legal aid or other pro bono organizations that provide legal representation in injunction for protection cases, many petitioners and respondents nonetheless appear pro se in these proceedings, perhaps because they are unaware of the free services.

Some existing laws assist pro se survivors seeking to file a petition for an injunction for protection. Unlike the filing of other civil proceedings that require payment of a filing fee, the assessment of such a fee for an injunction petition is prohibited.[20] While a clerk of the court may not provide legal advice to the petitioner, the clerks are required to assist petitioners with filing their injunction petition, as well as with filing motions seeking to enforce a granted injunction for protection if the petitioner later believes that the respondent has violated the injunction.[21] All clerks’ offices shall also provide simplified petition forms for the injunction, any modifications, and the enforcement thereof, including instructions for completion.[22]

The Florida Supreme Court has created standard forms that may be used by pro se petitioners filing a petition for an injunction for protection.[23] These forms explain, using as minimal legalese as possible, what information the petitioner should include in the[24] petition, what the petitioner should expect after filing, and what action the petitioner may take if the petition is either granted or denied.[25] These forms also explain the legal definition of domestic violence, dating violence, sexual violence, repeat violence, and stalking, and the findings the court must make to grant the petition.

These forms explain that if the facts contained in the petition meet the requisite legal standards, the judge will sign an immediate temporary injunction for protection.[26] The respondent will not receive notice that an injunction petition has been filed until the temporary injunction is personally served by the sheriff.[27] The temporary injunction will last either until a full hearing can be held or 15 days.[28] The court may extend the temporary injunction beyond the 15-day period for good reason, including, but not limited to, if the court is unable to obtain service on the respondent.[29]

The temporary injunction is issued ex parte, meaning the judge has considered only the petitioner’s information.[30] The temporary injunction gives the petitioner the date of the hearing at which he or she will be expected to testify about the facts in the petition.[31] At this hearing, the respondent will also have the opportunity to testify.[32] The judge will then decide whether to issue a final injunction for protection.[33]

If the judge denies the petition because it appears to the court that no imminent danger exists, the court shall set a full hearing unless the petitioner requests no hearing be set.[34] If the judge denies the petition, the petitioner may either amend the petition to include facts illustrating imminent danger by filing a supplemental affidavit in support of the injunction petition; attend a hearing and present facts that support the petition; and/or dismiss the petition.[35]

Why Change Is Needed

It is time for Florida to address the lack of appellate assistance for pro se appellate litigants by creating an avenue for lawyers to provide assistance with appeals in injunction for protection cases. The problem is most acute in cases in which the survivor was successful in obtaining injunctive relief but is now required to file legal papers and an answer brief on appeal. Due to limited finances or economic abuse, many petitioners are virtually foreclosed from meaningful participation in appellate review.[36] By providing pro bono appellate assistance, attorneys can assist in preserving the legal protections that the trial-level process produced (or, in the case of an improper injunction, which does happen from time to time, assist in straightening out the matter).

Apart from pure errors of law, a judgment or order in a family law matter will generally not be disturbed on appeal if it does not constitute an abuse of discretion.[37] “The decision of the trial court comes to [the appellate court] clothed in a presumption of correctness, and the burden is on the appellant to demonstrate reversible error.”[38] These are high hurdles to overcome — and it is for that reason that legal assistance for pro se domestic violence survivors appealing or defending an appeal of trial court decisions regarding injunction petitions is so important.

In Mitchell v. Brogden, 249 So. 3d 781 (Fla. 1st DCA 2018), the Florida First District Court of Appeal heard an appeal filed by a respondent who had an injunction for protection against stalking entered against him. Appellate review was sought, but the survivor, who had no counsel at the trial court level, had no appellate counsel.[39] As is often the case, the appellant had the financial means to hire counsel and, thus, his appellate brief was reviewed by the court and consequently, the injunction against him was reversed.[40] While the appellee filed a pro se answer brief, the court struck it for technical noncompliance with its citation rules, such that only the appellant’s brief was considered for review.[41] In his dissenting opinion, Judge Scott Makar made two recommendations for assisting pro se litigants in similar cases.[42] First, Judge Makar recommended that courts should strike only the noncompliant portions of appellate briefs or answer briefs.[43] Next, he recommended that consideration be given to “appointing counsel or encouraging legal aid organizations and appellate pro bono attorneys to provide representation in this type of case where one or both parties lack counsel.”[44]

In Hussey v. Lara, 2019 WL 1548625 (Fla. 3d DCA 2019), the Third District Court of Appeal heard an appeal filed by a respondent who had an injunction for protection against sexual violence entered against him. Again, the petitioner, on behalf of the minor victim, represented herself in the trial court proceedings and did not file a brief or other response to the respondent’s appellate brief.[45] On appeal, the Third District was left with no option but to reverse the final injunction based on a lack of supportive admissible evidence.[46] In reaching this result, Judge Vance Salter on behalf of the appellate panel made a point to comment not only on the recurring issue of access to counsel (or the lack thereof) in both trial court domestic violence cases as well as with appellate review of these matters, but also on the dire need for someone in the legal community — whether it be nonprofit legal service providers, the Florida Commission on Access to Civil Justice, The Florida Bar, or the judiciary — to take steps to assure pro se parties are aware of opportunities for legal assistance, even if they cannot afford private counsel.[47] As Judge Salter so candidly noted, “[t]he issues could hardly be more significant — the allegations, proceedings, and results substantially affect the long-term physical and emotional health of the parties and their families.”[48]

Cases such as Mitchell and Hussey are not uncommon and, as a result, the appellate caselaw existing regarding injunctions for protection is notable for the number of cases where no appellate counsel appears for the appellee, reflecting the lack of a full adversarial process on appeal.[49] The outcomes in these cases weigh in favor of the respondent, potentially because the appellant has the means to appeal and typically has no one contesting or scrutinizing the matter for the appellee. Appellate reform is needed so that survivors of domestic violence who do not see success at the trial court level may appeal their case, or in the alternative, if their abuser appeals the grant of an injunction for protection, the survivor should have equal access to defend their injunction on appellate review. Appellate court systems should ensure adequate consideration of each case, thereby affording every litigant the full benefit of the judicial process. Change in Florida is needed so that the appellate caselaw in these types of cases accurately depicts both parties’ position on the matters and judges are able to make a fair determination based on all of the facts at play.

Policy Recommendations

The Appellate Practice Section of The Florida Bar — Fortunately, members of The Florida Bar have taken notice of these issues and have begun to take steps to address it. Taking note of Judge Makar’s dissent in Mitchell and Judge Salter’s opinion in Hussey, the Appellate Practice Section and its Pro Bono Committee has recently begun discussing how they may help spearhead this mission. The section is currently considering reforming its own practices by adding resources to its website and updating its Pro Se Appellate Handbook that will assist pro se domestic violence survivors with appeals of injunction for protection cases. The section is also contemplating opening the lines of communication between trial courts throughout the state to ensure statewide uniformity in how the courts’ websites convey information about injunctions for protection and the resources available for all parties involved. Annually, the section reaches out to legal aid organizations throughout Florida. This year, it is likely that part of this discussion will focus on how the Appellate Practice Section and its Pro Bono Committee may work with statewide legal aid organizations to better assist survivors of domestic violence with injunction for protection cases at the trial court and appellate level. If even one of these changes are implemented, it will likely have a positive ripple effect on the outcome of these cases going forward.

Utilization of Law School Clinic Programs — A second reservoir for pro bono legal assistance exists that should not go untapped: law school clinic programs. “The bench and the bar are primarily responsible for providing competent legal services for all persons, including those unable to pay for these services.”[50] One means by which this objective may be achieved is through utilization of law school clinic programs.[51] Through these programs, law students, under the supervision of a licensed attorney, may obtain course credit while representing indigent clients, such as survivors of domestic violence in need of appellate assistance.[52]

There are currently 12 law schools throughout the state of Florida.[53] Of these 12, only three have active clinic programs that specialize in assistance with injunction for protection cases. The University of Florida Levin College of Law has an Intimate Partner Violence Assistance Clinic (IPVAC) that provides indigent victims of domestic violence with legal representation, mental-health counseling, and case management tools related to injunction for protection cases.[54] Florida International University’s College of Law has a Community Lawyering Clinic that utilizes legal services to aid community members’ health and well-being, including, representing indigent survivors of domestic violence in injunction for protection cases.[55] The Florida State University College of Law Gender and Family Justice Clinic aims to address the intersection between mass incarceration and families, including representing petitioners in injunction for protection cases.[56] These clinics serve as examples to other Florida law schools. These programs illustrate ways to bridge the gap in appellate pro bono resources for pro se survivors of domestic violence. Not only will utilization of clinic programs serve a dire need in our legal community, it will also train effective future attorneys and emphasize the importance of pro bono contributions in the Florida legal community.

Redefine “Indigency” for Purposes of Appellate Filing Fees — Mandatory filing fees are financial obstacles to petitioners seeking to appeal trial court decisions regarding injunctions for protection. Appellate filing fees are significantly more expensive than typical trial court filing fees. The cost of filing an appeal is $300.[57] A party that seeks appellate review may waive this fee by filing an application for a determination of indigent status[58] with the clerk of the lower court.[59] If granted, appellate filing fees are waived.[60] While the availability of an indigency determination that results in a waiver of filing fees sounds like a noble idea, this determination is often out of the reach of many domestic violence survivors who are, in fact, indigent.

A survivor who appeals a dismissal or a denial of an injunction petition may not be eligible for assistance from the trial-level clerk, who is statutorily mandated to assist “a person who appears before the clerk and requests assistance in completing the [civil indigency] application” in that jurisdiction.[61] As such, the clerk may be hesitant to issue a certificate of indigency if the party has no existing case before the trial court; clarification may be necessary to make sure trial and appellate court clerks can act upon such matters.

The definition of “indigency” used by Florida clerks of court poses an issue to survivors of domestic violence who seek appellate review because it entirely ignores the likelihood that the survivor is facing economic abuse at the hands of their abuser, who very well may be the survivor’s spouse, partner, or family member.[62] In this respect, the statewide definition of indigency for purposes of filing fee waivers inadvertently neglects those who need it the most — survivors of domestic violence.

The civil indigency determination for appellate review of injunction for protection cases should consider solely the income of the survivor, not the contributing income of an abusive spouse or partner. A promising idea is to simply eliminate filing fees for appellate review of injunction for protection cases, in step with the prohibition on filing fees for initial injunction petitions.[63] A revised indigency determination for waiver of appellate filing fees or a prohibition on appellate filing fees for injunction for protection cases would encourage, rather than discourage, petitioners to appeal unjust denials and to respond to appeals filed by the respondents.

Safety Information Disseminated Via Appellate Court Clerks — Currently, many of the websites of Florida’s judicial circuits provide survivors of domestic violence seeking injunctive relief at the trial-court level access to information regarding safety plans and what to do after an injunction is granted.[64] It is vital that, if appellate assistance is provided to petitioners seeking or defending appellate review, that safety information is also disseminated via the clerks of court of Florida’s district courts of appeal.

First, appellate clerks of court should make safety plan information available so the survivor can undertake the necessary precautions to protect against potential retaliation. The National Center on Domestic and Sexual Violence has created a template Personalized Safety Plan that the survivor may use to increase his or her safety and plan for the possibility of further violence.[65] Appellate clerks should be required to give a copy of this safety plan to each survivor who files an appeal of an injunction for protection case or files a brief responding to an appeal.

Additionally, appellate clerks should disseminate further information that may assist the survivor in ensuring his or her continued safety. This information could include, but is not limited to, an explanation on what to do if the survivor’s abuser continues pursuing him or her, law enforcement contact information, and safe shelters where the survivor may seek refuge.

Distribution of information by appellate court clerks should not only benefit the survivor of domestic violence. The appellate clerk should also provide paperwork to the party responding to the allegations of domestic violence with copies of Florida’s statutes delineating violations of an injunction for protection. The clerk should also provide information regarding access to resources that may aid the abuser in seeking assistance. This may include information on batterer’s intervention programs or substance-abuse counseling.

The dissemination of safety information by appellate clerks is vital to ensuring equal access to appellate review for both petitioners and respondents in injunction for protection cases. This information could very well save the life of a survivor who is subjected to retaliatory action for seeking an initial injunction, or who is seeking appellate review of a denial of an injunction petition. The distribution of information to abusers on violations of injunctions for protection and access to community resources will serve to ensure the abuser’s interests are being considered and may add additional safeguards for survivors of domestic violence.


Domestic violence is a serious issue that warrants a serious response. When a survivor of domestic violence files a petition for an injunction for protection, he or she is attempting to take back control of his or her life. Courts should facilitate access to legal remedies, including the pursuit of appellate review if the survivor feels an injunction petition was unjustly denied or is defending an appeal filed by an abuser. Florida can — and should — better assist pro se litigants appealing civil court judgments in the specific context of injunctions for protection.

The Appellate Practice Section of The Florida Bar should supplement the materials regarding appeals of injunction for protection cases available via its website, work with Florida’s trial courts to ensure uniformity of information pertaining to injunctions for protection listed on the trial courts’ websites, and communicate with statewide legal aid organizations regarding these issues. Law school clinic programs should also be utilized to assist survivors of domestic violence appealing or defending against an appeal in an injunction for protection case. Additionally, a revised indigency determination for waiver of appellate filing fees or a prohibition on appellate filing fees for injunction for protection cases would encourage, rather than discourage, petitioners to appeal unjust denials and to respond to appeals filed by the respondents. While appellate pro bono assistance is important, it would be for naught if there was no safety information disseminated via appellate court clerks. Statistics make clear that domestic violence is a harrowing issue in Florida and the danger of retaliation by respondents against petitioners is grave. The dissemination of safety information by appellate clerks is vital to ensuring equal access to appellate review for petitioners, not just respondents, in injunction for protection cases.

Society entrusts trial and appellate courts to dispense justice by means of an adversarial judicial process, where even those without financial resources can be heard. In appellate cases involving injunctions for protection, this process tends to be one-sided due to the lack of appellate resources for those in need. The recommendations in this article are necessary first steps for reform.


[1] Ruth Bader Ginsburg, Introductory Remarks at the Pro Bono Institute Annual Conference Reception (2014), available at

[2] This article uses the term “domestic violence” as an enveloping term intended to include other forms of intimate-partner violence recognized by the statutes governing injunctions for protection.

[3] Michelle J. Anderson, Women Do Not Report the Violence They Suffer: Violence Against Women and the State Action Doctrine, 46 Vill. L. Rev. 907 (2001).

[4] Fla. Dep’t of Law Enforcement, Florida’s County and Jurisdictional Reported Domestic Violence Offenses 2017, available at

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Domestic Abuse Shelter of the Florida Keys, Information on Domestic Violence,

[12] This article uses the term “survivor(s)” in reference to those who are often identified in the legal community, and commonly, as “victim(s).” The use of the term “survivor,” rather than “victim,” serves as a term of empowerment and implies progression over stagnancy. However, if a cited source uses the term “victim,” the author will use that term when referencing that source. See Adele M. Morrison, Changing the Domestic Violence (Dis)Course: Moving from White Victim to Multi-Cultural Survivor, 39 U.C. Davis L. Rev. 1061, 1106-1107 (2006).

[13] This article uses the phrase “abuser” to refer to the person who harms, rather than “offender” or “batterer.” While there does not appear to be a plethora of scholarly justification for the term that is most accurate, much of the literature utilizes the phrase “abuser.” This article uses that term for the sake of consistency. See Dana Harrington Conner, Financial Freedom: Women, Money, and Domestic Abuse, 20 Wm. & Mary J. Women & L. 339 (2014).

[14] See Fla. Stat. §741.30 (2018); Fla. Stat. §784.046 (2018); see also Fla. Stat. §784.0485 (2018); see also First Judicial Circuit of Florida, Domestic Violence and Civil Injunctions,

[15] Pro Se, Black’s Law Dictionary (10th ed. 2014).

[16] Id.

[17] Fla. Stat. §741.30 (2018); Fla. Stat. §784.046 (2018); Fla. Stat. §784.0485 (2018); see also Judge Amy Karan & Lauren Lazarus, Florida’s Four Orders of Protection Against Violence: Distinguishing the Difference, 77 Fla. B. J. 31 (2003).

[18] First Judicial Circuit of Florida, Domestic Violence and Civil Injunctions,

[19] See Fla. Stat. §741.30(1)(f) (2018); Fla. Stat. §784.046(2)(e) (2018); see also Fla. Stat. §784.0485(1)(d) (2018).

[20] Fla. Stat. §741.30(2)(a) (2018).

[21] Fla. Stat. §741.30(2)(c)(1) (2018).

[22] Fla. Stat. §741.30(2)(c)(2) (2018).

[23] Fla. Fam. L.R.P. Form 12.980(a) (2015); Fla. Fam. L.R.P. Form 12.980(n) (2015); Fla. Fam. L.R.P. 12.980(q) (2015): Fla. Fam. L.R.P. Form 12.980(f) (2015); Fla. Fam. L.R.P. 12.980(t) (2015).

[24] The Journal strives to use gender-neutral pronouns. However, statistics indicate that more women than men are survivors of domestic violence. See Nat’l Coal. Against Domestic Violence, National Statistics,; see also Center for Disease Control and Prevention, Violence Prevention Fast Facts, (“Nearly one in four adult women and approximately one in seven adult men report having experienced severe physical violence from an intimate partner in their lifetime.”).

[25] See id.

[26] Id.; see also Fla. Fam. L.R.P. Form 12.980(c)(1) (2015); Fla. Fam. L.R.P. Form 12.980(c)(2) (2015).

[27] Fla. Stat. §741.30(2)(c)(1) (2018).

[28] Id.

[29] Id.

[30] Id.

[31] Id.

[32] Id.

[33] Id.; see also Fla. Fam. L.R.P. Form 12.980(d)(1) (2015); Fla. Fam. L.R.P. Form 12.980(d)(2) (2015).

[34] Fla. Stat. §741.30(2)(c)(1) (2018).

[35] See id.; see also Fla. Fam. L.R.P. Form 12.980(g)(2015).

[36] Florida Supreme Court, Report of the Florida Supreme Court Gender Bias Study Commission 121 (1990).

[37] Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980).

[38] Chirino v. Chirino, 710 So. 2d 696 (Fla. 2d DCA 1998).

[39] Mitchell, 249 So. 3d at 784 (Makar, J., dissenting from denial of Order on Motion for Hearing En Banc).

[40] Id. at 781.

[41] Id. at 784 (Makar, J., dissenting from denial of Order on Motion for Hearing En Banc).

[42] Id.

[43] Id.

[44] Id.

[45] Hussey, 2019 WL 1548625 at *1.

[46] Id.

[47] Id.

[48] Id.

[49] Adversary System, Black’s Law Dictionary (10th ed. 2014).

[50] Fla. Stat. B. R. 11-1.1 (1994).

[51] Id.

[52] Fla. Stat. B. R. 11-1.2 (1994).

[53] These schools are Ave Maria School of Law; Barry University Dwayne O. Andreas School of Law; Florida Agriculture & Mechanical University College of Law; Florida Coastal School of Law; Florida International University College of Law; Florida State University College of Law; Nova Southeastern University Shepard Broad College of Law; Stetson University College of Law; Saint Thomas University School of Law; West Michigan University Cooley Law School; University of Florida Fredric G. Levin College of Law; and University of Miami School of Law. See The Florida Bar, Florida Law Schools and Colleges,

[54] University of Florida Fredric G. Levin College of Law, What Is the Intimate Partner Violence Assistance Clinic (IPVAC),

[55] Florida International University College of Law, Community Lawyering Clinic,

[56] Florida State University College of Law, Gender and Family Justice Clinic,

[57] Fla. Stat. §35.22 (2018).

[58] An appellant is indigent if his or her income is less than or equal to 200% below the current Federal Poverty Guidelines prescribed for the size of his or her household by the U.S. Department of Health and Human Services. There is a presumption that an appellant is not indigent if she owns or has equity in any intangible or tangible personal property or real property or has the expectancy of an interest in any such property with a net equity value greater than or equal to $2,500, excluding the value of the homestead and one vehicle with a net value of less than $5,000. Fla. Stat. §57.082(a) (2018).

[59] Fla. R. App. P. 9.430(a).

[60] Id.

[61] Fla. Stat. §57.082 (2018).

[62] Dana Harrington Conner, Financial Freedom: Women, Money, and Domestic Abuse, 20 Wm. & Mary J. Women & L. 339 (2014).

[63] Fla. Stat. §741.30(2)(a) (2018).

[64] See generally Clerk of the Court Brevard Co., Your Safety,; 12th Judicial Circuit Court, Injunctions for Protection,; Eighth Judicial Circuit of Florida, Domestic Violence,

[65] National Center on Domestic Violence and Sexual Violence, Domestic Violence Personalized Safety Plan,


Caitlyn R. Shield Waksler, B.A., University of Central Florida, 2016; J.D., University of Florida Levin College of Law, 2019. The author thanks Professor Teresa Drake and Veronica Robleto of the University of Florida Levin College of Law’s Intimate Partner Violence Assistance Clinic (IPVAC) for bringing the issues discussed in this article to my attention and Judge Scott Makar of the First District Court of Appeal for serving as a teacher and mentor. An additional thank you to attorney Sarah Lahlou-Amine, chair of The Florida Bar Appellate Practice Section, for bringing the section’s efforts to my attention. Most importantly, thank you to the survivors of domestic violence that I have had the privilege to assist through my clinical experience — you are an inspiration.

This column is submitted on behalf of the Appellate Practice Section, Nicholas Ari Shannin, chair, and Thomas Seider, editor.

Appellate Practice