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My mother and I fled our home this weekend due to concerns for our safety, caused by my step-father. We're staying at a friend's house across town while we sort things out.

The home is one which we have lived in for decades, with some of those years pre-dating my step-father's presence in our lives. So, naturally, we would like to return to it as soon as possible. But we still don't feel comfortable going back with him living there.

I don't know exactly what my mother is planning to do about the situation in general - she may not even know herself. But this did make me curious about one possibility.

Could one of us get a restraining order against my step-father, and then return to our home, thereby forcing his ejection from the house? If this is legal, is there any reason not to do this in terms of how a judge may look upon it in later proceedings?

Jurisdiction is Orange County, Florida

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  • Don't know enough on the specific topic to go for an answer, but I do not think a restraining order would work in this situation. I am assuming the stepdad is married to your mother (hence being stepdad) and I'm also assuming he lives there and/or owns or co-owns the property.
    – A.fm.
    Oct 9, 2017 at 17:46
  • @A.fm. He lives there, and he may be a co-signer or sole name on the current mortgage. And he is currently still married to my mother, with no pending divorce action (yet). However, I've done some research already to see that you can have the homeowner ejected due to a restraining order in some cases similar to this. What I don't know is if that's allowed when the petitioner has already relocated (even if only temporarily) to another place.
    – Iszi
    Oct 9, 2017 at 18:09
  • Thanks for clarifying. Again, I'm hoping someone can give you a complete answer. I was a bit surprised to hear an ejection can occur that way, although now it does make sense. Your intuition to check on whether or not the petitioner has already relocated matters is a logical next question and it reflects well on your intuition that you went there. My guess is if it was an emergency situation and the intent was for it to be temporary, you should still be protected. I do not know, though.
    – A.fm.
    Oct 9, 2017 at 18:36

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The most common situation when a homeowner would be ejected from a home that he owns or co-owns would be as temporary orders in a divorce case, pending a permanent orders award governing all issues in the case. In part, this is because a divorce court could usually award the house to either party without regard to title if it were owned by either party (there are exceptions when the court couldn't do that which are beyond the scope of this answer).

The next most common situation where this might happen would be incident to a criminal case against the homeowner, during the pendency of the criminal proceedings.

One can imagine a civil temporary restraining order doing this, but it would be less likely to for a TRO court to eject a homeowner while allowing one or more non-owner's to stay, because a TRO baring a homeowner from using his own home could not be made permanent, and normally a TRO is only issues when a permanent order could also be issued of that type.

In the long run, the non-owners of the property may stay only at the sufferance of the property owner, even if a temporary order mitigates this in the short term.

In a case with co-owners of property, either have a right to use it absent a court order, so a TRO excluding one, pending a divorce or a partition action to force the sale of the property and division of the proceeds, would not be too unusual.

If he was not a homeowner, in contrast, a simple eviction action would probably suffice, possibly with a TRO to protect the persons and property from his misconduct if necessary pending and following the eviction.

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