Navigating Both Criminal and Civil “Stand Your Ground” Defenses in High-Conflict Family Law Cases Case Study: Overcoming False Domestic Violence Allegations in a Dissolution Action by Defending the Criminal Case and/or Petition for Injunction for…

Consider the fictitious case of Fred and Wilma Smith.^[1] They have been married for 15 years, have three children — all in elementary school — and both are contemplating divorce. While Wilma was getting the children ready for school one morning, the parties began arguing again. Fred was the aggressor. His outburst escalated into physical contact where he slammed Wilma into the refrigerator. Wilma instinctively pushed him away to breathe and create distance, resulting in a torn shirt and minor scratches on Fred. That afternoon Fred told a coworker about the argument. The coworker told Fred, “You better watch out because if Wilma gets a domestic violence injunction against you, she will automatically get the house and the children.” Nearly 12 hours later, Fred falsely reported to the police that Wilma was the aggressor and had scratched his chest. This led to Wilma’s arrest in front of her children and neighbors that evening for domestic battery.^[2]

Wilma was held in custody overnight because domestic violence defendants cannot bond out immediately.^[3] The following morning, she was released with a no contact order, preventing her from returning home and to her children. A few days later, Wilma was served with a temporary injunction for protection against domestic violence with minor children, which awarded Fred exclusive use and possession of the marital home and 100% time-sharing with their three minor children.^[4]

Before the 15-day return hearing for the temporary injunction, Fred filed a petition for dissolution of marriage referencing the criminal case, the no contact order, and the temporary injunction for protection.^[5] He requested sole parental responsibility of the children, exclusive use and possession of the marital home, alimony, child support, and attorney fees.

Wilma comes to you desperate for help getting back into her home with her young children.

Introduction: The Intersection of Family Law, Criminal Law, and Civil Law

High-conflict dissolution of marriage or paternity cases frequently present complexities that extend beyond typical family law issues. When allegations of domestic violence surface, particularly those involving claims of self-defense, family law practitioners often find themselves navigating an intricate legal landscape that demands a sophisticated understanding of not only family law, but also criminal and civil procedure. This article aims to illuminate the nuances of Florida’s “Stand Your Ground” (SYG) law, specifically its differing applications and burdens of proof in criminal versus civil contexts, and to underscore the critical need for family law practitioners — or co-counsel with other attorneys — to possess extensive expertise in these interwoven areas to achieve optimal client outcomes.

The significant impact of any evidence of domestic violence on subsequent determinations of time-sharing and parental responsibility in family law cases cannot be overstated. The court must evaluate various factors to determine the best interests of the child, including evidence of domestic violence, sexual violence, child abuse, child abandonment, or child neglect.^[6] If such evidence is accepted, the court must specifically acknowledge in writing that it was considered.^[7] Furthermore, a rebuttable presumption that shared parental responsibility is detrimental to the child arises if a parent has been convicted of a first-degree misdemeanor or higher involving domestic violence, meets specific statutory criteria,^[8] or has been convicted of certain offenses against minors. If this presumption is not rebutted after the convicted parent is advised of the presumption, shared parental responsibility, including time-sharing, may not be granted to that parent, though their financial support obligation remains.^[9]

Florida’s “Stand Your Ground” Law: A Single Statute with Divergent Paths

F.S. §776.032 grants immunity from criminal prosecution and civil action for the justifiable use or threatened use of force.^[10] This immunity applies to individuals who use or threaten force as permitted by other sections of Ch. 776 (unless the force is used against a law enforcement officer acting in official duties). While the statutory basis is singular, its procedural application, especially concerning the burden of proof, varies significantly depending on whether it is asserted in a criminal prosecution or a civil action.

Asserting Wilma’s “Stand Your Ground” Claim in Criminal Prosecution

When defending a criminal prosecution, the appropriate procedural vehicle to raise immunity under §776.032 is a pretrial motion to dismiss under Florida Rule of Criminal Procedure 3.190(b). This is because §776.032 contemplates that a defendant entitled to statutory immunity will not be subjected to trial and grants a substantive right to avoid arrest, detention, charges, or prosecution for legally justified force, rather than merely avoiding conviction.^[11] When a defendant claims SYG immunity, the trial court is mandated to conduct an evidentiary hearing to consider factual disputes.^[12]

Notably, the burden of proof in criminal SYG claims shifted with a 2017 amendment to the statute.^[13] Once a defendant raises a prima facie claim of self-defense immunity at a pretrial immunity hearing, the burden of proof, which is clear and convincing evidence, is on the State of Florida (the party seeking to overcome the immunity from criminal prosecution). A “prima facie” claim is one that is sufficient to establish a fact or raise a presumption unless disproved or rebutted, seemingly true on first examination, though it may later be proved untrue.^[14] To “raise” such a claim means simply to introduce or put it forward for consideration, and not to affirmatively prove it.^[15] “Clear and convincing evidence” is an “intermediate standard” requiring evidence that makes the truth of the asserted facts highly probable. This standard entails both a qualitative and quantitative measure: The evidence must be credible, witness memories must be clear and without confusion, and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy.^[16] The mere existence of factual disputes does not justify denying the motion seeking immunity.

Since the fictitious Wilma Smith was not the aggressor, she was not required to retreat when Fred slammed her into the refrigerator. Under these facts, she is entitled to immunity from prosecution.^[17]

Family law practitioners must recognize the devastating impact of these domestic violence charges (both the criminal case and the injunction case) on Wilma’s time-sharing and parental responsibility arguments. Wilma’s attorney must be well versed in criminal law (for the misdemeanor), civil law (for the injunction), and family law (for the dissolution of marriage and parenting issues) to explore all her options and to expeditiously petition for the reunification with her children in the dissolution of marriage case.

Typically, a first-time misdemeanor domestic violence defendant like Wilma is offered a pretrial diversion program. Any first offender in Florida, or any person previously convicted of not more than one nonviolent misdemeanor, who is charged with any misdemeanor or felony of the third degree is eligible for release to the pretrial intervention program on the approval of the administrator of the program and the consent of the victim, the state attorney, and the judge who presided at the initial appearance hearing of the offender.^[18]

Typically, a pretrial diversion program for a misdemeanor domestic violence battery would include a batterers’ intervention program.^[19] The reason why a pretrial diversion program is typically a viable option for a client like Wilma is because there is no risk of jail, no finding of guilt, and — assuming Wilma completes all the conditions of the program — the State Attorney’s Office dismisses the misdemeanor charges at the conclusion of the case. This allows Wilma to seal her criminal history, and her domestic violence misdemeanor case will be removed from the clerk’s website.

If Wilma was not offered and accepted into the pretrial diversion program (assuming that the case was not otherwise dropped/dismissed), she would either have to take a plea or go to trial. If she pled, she would either be adjudicated guilty or adjudication would be withheld. If she went to trial and was found guilty, she would be adjudicated guilty and either sentenced to incarceration, probation, or a combination of both.

Exception to the Rule: Inability To Seal Arrest Records

The family law practitioner must be aware that domestic violence cases are exceptions to the general rule that a person may seal their criminal history after receiving a withhold of adjudication. F.S. §943.0584 provides that domestic battery, felony domestic battery, and stalking are all excluded from the general rule that a “withhold of adjudication” may be sealed.^[20] If a practitioner refers Wilma to “that friend from law school who does some criminal,” Wilma may not receive proper counsel. Indeed, an inexperienced attorney may improperly recommend a plea that offers a withhold of adjudication on the charges. In so doing, the charges will remain on Wilma’s record forever, which may handicap her as it will be a factor considered by the court when determining parental responsibility and time-sharing with her children.

As mentioned earlier, entry into a pretrial diversion program — a preferred choice for Wilma — is conditioned upon the victim’s consent. This is a frequent problem when the domestic violence case is being used by the other spouse to gain an upper hand in the high-conflict dissolution case. In Wilma’s case, we must assume Fred refused to consent to the diversion program, so the assistant state attorney could not offer it.

To overcome this obstruction imposed by Fred, Wilma’s counsel must file a pretrial petition to determine immunity and motion to dismiss based on the criminal part of the SYG statute. Her motion must detail Fred’s history of aggressive and abusive behavior, which created a reasonable fear of serious harm for Wilma and her kids. This included instances, such as Fred: 1) punching a hole in the wall, fracturing his hand; 2) shoving Wilma’s mother to pursue Wilma; 3) frequently manhandling, pushing, grabbing, and restraining Wilma, even pinning her against walls or throwing her onto beds; 4) physically handling their oldest son in a similar manner; 5) hitting the family dog; 6) throwing objects, including Wilma’s phone, at her head and bruising her leg; and 7) destroying property by throwing dishes and chairs, which frightened the children.

The SYG petition must focus on undermining the State’s ability to meet its “clear and convincing” burden by attacking Fred’s credibility as the victim and only witness. The motion must extensively detail Fred’s history of violence, deception, and his post-incident actions, such as waiting nearly 12 hours to call law enforcement and orchestrating Wilma’s arrest in front of their children. By raising a prima facie claim of self-defense and demonstrating the unreliability of the State’s key witness, Wilma puts the onus on the State to present credible, clear, and straightforward evidence to overcome immunity.

For purposes of this article, we will assume this strategy was instrumental in the State overriding Fred’s refusal to allow Wilma to enter a diversion program and, ultimately, leading to the dismissal of the false battery and domestic violence charges by the State. Wilma is now eligible to seal her criminal history from these false charges.^[21] Ordinarily, there are limits to how many times a person may seal a criminal history. However, there is a carve-out for SYG cases.^[22] However, if the State refused to offer the pretrial diversion program, Wilma would have the opportunity to have a hearing on her SYG motion.

Appellate Remedies in SYG Criminal Actions

If Wilma lost that motion, the nonfinal order denying her claim of “Stand Your Ground” immunity may be challenged using a writ of prohibition, since this is not an appealable, non-final order like the civil counterpart. Wilma may consider a conditional plea that will be vacated if she succeeds on her writ of prohibition.^[23]

Asserting “Stand Your Ground” in Civil Actions

While the “Stand Your Ground” law also grants immunity from civil action, the procedural landscape for asserting this immunity in a civil context differs. This is relevant when defending against a petition for protection against domestic violence.

In Waite v. Waite, 618 So. 2d 1360 (Fla. 1993), the Florida Supreme Court abrogated the doctrine of interspousal immunity for all torts.^[24] Therefore, the family law practitioner must be prepared to assert a SYG defense when spouses sue one another for damages from tortious acts such as battery.

The court has noted, that while §776.032 grants a substantive right to assert immunity, the legislature did not prescribe specific procedural mechanisms for invoking and determining SYG immunity in civil matters, leaving these procedures to be developed by the judiciary.^[25]

In civil proceedings, the determination of whether a respondent like Wilma is entitled to SYG immunity is made at a pretrial evidentiary hearing. Unlike criminal cases, the civil respondent bears the burden to prove that immunity attaches by a preponderance of the evidence.^[26] This “preponderance of the evidence” standard requires the defendant to show that it is “more likely than not” that they acted in justifiable self-defense. The trial court evaluates witness credibility and makes factual findings, applying an objective standard to determine if a reasonable and prudent person, situated in the same circumstances and knowing what the defendant knew, would have used the same force the defendant did.^[27]

New Appellate Remedies in the SYG Civil Action

A significant development in civil SYG appeals occurred with recent amendments to the Florida Rules of Appellate Procedure, which became effective July 1, 2025.^[28] A new subdivision, Rule 9.130(a)(3)(F)(iv), explicitly allows civil defendants to appeal nonfinal orders that deny claims of immunity brought under F.S. §776.032.^[29] This provides a direct path for interlocutory appeals in civil SYG cases, a path notably not granted for criminal defendants.

Asserting Wilma’s “Stand Your Ground” Claim in the Domestic Violence Action

The same allegations underlying Wilma’s criminal charges also resulted in a domestic violence injunction case. Fred’s petition for injunction also falsely reported Wilma was the aggressor. A temporary injunction was issued, granting Fred exclusive use and possession of the marital home and 100% time-sharing with the children.

Wilma, as the respondent, filed a petition to determine immunity and motion to dismiss on the basis of the “Stand Your Ground” law, seeking a pretrial evidentiary hearing to determine immunity. The petition presented the same factual background regarding Fred’s history of violence and Wilma’s reasonable fear of serious harm. Given Fred’s history of violence toward his wife, his son, and even striking the family dog, Wilma testified that she feared he would restrain, physically harm, seriously hurt, or even kill her when he moved closer to her. Her actions — instinctively trying to create distance and pushing Fred away — were presented as justifiable defensive moves.

By successfully demonstrating — by a preponderance of the evidence — that Wilma’s actions constituted justifiable self-defense under SYG, the petition to determine immunity and motion to dismiss in the domestic violence injunction case led to a dismissal with prejudice of that action.

This outcome was pivotal: It eliminated a second significant legal impediment, allowing the focus to shift entirely to the dissolution of marriage case. Furthermore, a successful SYG defense in the injunction case facilitated Wilma’s return to her home with the children, and avoided the need for supervised time-sharing, which Fred’s initial petition for dissolution of marriage had requested based on alleged abuse, mental health issues, and self-harm threats.

The Indispensable Role of Specialized Legal Acumen

The hypothetical Smith case vividly illustrates the critical distinctions between applying Florida’s “Stand Your Ground” law in criminal and civil proceedings. While both derive from the same statute, the procedural mechanisms and, more importantly, the evidentiary burdens are fundamentally different.

1) Criminal Cases: The defendant needs only to raise a prima facie claim, shifting the heavy burden of clear and convincing evidence to the State to disprove immunity. Strategic focus often includes challenging the State’s witnesses and their credibility.

2) Civil Cases: The defendant must affirmatively prove immunity by a preponderance of the evidence, a lower but still distinct standard. Amendments to the Rules of Appellate Procedure now provide a direct avenue for appealing adverse rulings.^[30]

For family law practitioners, the implications are profound:

1) Interconnectedness: Domestic violence allegations in a dissolution case can quickly spawn parallel criminal charges and injunction proceedings, each with its own procedural demands and strategic considerations.

2) Discovery and Evidence: Understanding how evidence, such as past abusive behavior or a party’s credibility, impacts different burdens of proof is crucial for effective discovery and presentation.

3) Risk Mitigation: A successful SYG defense can not only protect a client from criminal penalties and restrictive injunctions, it can also significantly strengthen their position in the dissolution case, particularly regarding parental responsibility and time-sharing.

The ability to seamlessly navigate these complexities, from recognizing the opportunity for a SYG defense to executing the proper procedural motions and understanding the applicable burdens of proof, is paramount. This requires either an excellent working knowledge of civil and criminal procedure or the incorporation of experienced co-counsel. For example, expertise in civil trials can be invaluable in a civil SYG defense, while a criminal trial background is essential for a criminal SYG motion. Having a small team of confident attorneys to assist, guide, or co-counsel on such cases can be the difference between a devastating outcome and an optimal result for the client.

Conclusion: A Call for Integrated Expertise

High-conflict family law cases often present a crucible where various legal disciplines converge. The Florida “Stand Your Ground” law, though singular in its legislative origin, exemplifies this convergence, demanding distinct procedural approaches and evidentiary standards in criminal and civil contexts. As family law issues increasingly intersect with domestic violence allegations and self-defense claims, practitioners must be equipped to handle these multi-dimensional challenges. This necessitates either a dedicated pursuit of broader procedural mastery or, more practically, the strategic collaboration with specialized co-counsel. Such integrated expertise is no longer merely advantageous; it is essential for providing comprehensive advocacy and securing justice for clients enmeshed in the most complex family law disputes.

This column is submitted on behalf of the Family Law Section, Tenesia Connelly Hall, chair, and Meghan McDonough and Michael Tupper, editors.

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