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Domestic Violence

Protecting Yourself from Domestic Violence

Wednesday, August 12th, 2015

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If you believe you might in physical danger as a result of domestic violence, it is important that you understand your options to protect yourself and your children.  Remember you should always call 911 if your safety is in danger.  If an act of domestic violence has occurred, you should go to the Superior Court in the county where you and your spouse or partner live to begin the process of getting a Temporary Protective Order “TPO.”  TPO’s can be a valuable tool to provide you immediate protection and safety by prohibiting contact. You will speak with a judge when you go to the courthouse who is able to enter a 30 day order without your partner being present. The court will schedule a hearing within those 30 days for the judge to hear from both you and your spouse.  The judge can then enter another protective order which will generally be in place for 6 months or one year.  The TPO can include a variety of terms to ensure you are safe and have a secure place to live.  For example the TPO can:

Direct your partner to refrain from further acts of violence;

  1. Grant you possession of your home and excluding your partner from the home;
  2. Require your partner to provide you suitable alternate housing if you leave the home;
  3. Assist you in returning home if you left after the act of violence;
  4. Order your spouse to make payments for support for you and your children;
  5. Order your spouse to refrain from harassing or contacting you; and
  6. Order your spouse attend counseling sessions to prevent future acts of family violence.

If you are the victim of domestic violence, there are resources available to you, and you should seek immediate assistance. A lawyer can offer you legal advice to assist you through the process, and ensure you know all of your rights and options.

By: Deborah B. Koslin, Associate Attorney, Meriwether & Tharp, LLC

 

 

Domestic Violence is Real, Not a Divorce Tactic

Tuesday, May 26th, 2015

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There is no question that domestic violence is a very real concern in our nation, and thousands of men and women in this country suffer emotional, physical and verbal abuse at the hands of their spouses and romantic partners each day. But unfortunately, as Atlanta divorce attorneys, we have seen litigants use false or misleading allegations of spousal or family violence in order to obtain an advantage in divorce or child custody proceedings. Not only does this type of conduct undermine the very real suffering of those struggling to escape abuse relationships, but this strategy often backfires on those who employ it. Listed below are four reasons why you should never make unfounded allegations of abuse during divorce.

  1. Escalated conflict equals more court costs. Making false allegations of spousal abuse or child abuse will only add fuel to the fire of a hotly contested divorce. And, once a divorce becomes more contested, it is highly likely that the litigation costs associated with divorce will increase.
  1. You risk criminal prosecution. Many fail to realize that making false allegations to law enforcement is illegal. Thus, if you make false police reports in an attempt to color your estranged spouse as abusive, you could potentially face criminal prosecution.
  1. You risk losing credibility. Not only could you face criminal prosecution for making false allegation s of abuse, but if you lie to the court presiding over your divorce matter, you risk losing credibility before the court. Once you lie to the judge on one issue, he or she will be highly skeptical about any future claims you make during your case.
  1. You risk losing child custody. As mentioned above, if you make false allegations of abuse during your divorce or child custody matter, you risk losing credibility in the eyes of the court. Lack of credibility can be especially devastating if you are seeking primary custody of your children, because if the court finds that your false allegations have detriment to your children, you may risk the court finding that it is not in your children’s best interests to award you primary custody. Put plainly, making false allegations of abuse is one of the quickest ways to lose a child custody battle.

 

The Recession, Divorce, and Domestic Violence

Sunday, March 8th, 2015

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A recent study on the impact of the recession on family trends had some troubling results in the areas of divorce and domestic violence. The Recession Led to More Domestic Violence – but Fewer Divorces, by Philip Cohen, The Atlantic, December 15, 2014. Specifically, the study out of the Department of Sociology at the University of Maryland found a sharp decrease in the divorce rate in 2009, which the researcher says, “can be reasonably attributed to the recession.” At the same time, intimate partner domestic violence increased, which the researcher found coincided with a rise in men’s unemployment rates.

 What we seem to have here is a “perfect storm”: unemployed spouses who are spending more time together + stress from financial hardship + unable to get away from each other through divorce or separation because they cannot afford to = increase in domestic violence. These results are extremely troubling because they suggest that people are financially trapped in violent marriages. Certainly in times of financial stress people cut out on many of life’s luxuries. If a person loses their job, he/she may no longer be able to afford the luxury of going on a vacation or owning a second home. Consider the case of divorce: one household has to split into two, which means one person will need a new place to live. Add to that the additional cost of extra utilities, insurance and legal fees, and divorce can quickly become cost prohibitive for some couples. All of the sudden many couples cannot afford the “luxury” of divorce.

 If you are one of these couples financially trapped in a marriage, consider visiting Fulton County’s Family Law Information Center. Even if you are not in Fulton county, the documents on their website may help you navigate the world of divorce without an attorney. If you are able to, consider meeting with a divorce attorney for a consultation. Most family law attorneys offer a consultation at their hourly rate, and discussing your case with an attorney for an hour may give you ideas that you otherwise would not have thought of. Certainly if you are financially trapped in a violent marriage, you should seek the help of family and friends. Even staying with a friend or family member for a few weeks may afford you the ability to begin the divorce proceedings. At a minimum, it will get you out of a potentially increasing violent situation.

How Do I Obtain a Family Violence Protective Order in Georgia?

Monday, October 21st, 2013

To obtain a family violence protective order in Georgia, the victim must file a Petition in the Superior Court of the county in which the defendant resides. OCGA §19-13-2(a). If the defendant does not reside in Georgia, the Petition may be filed in the county in which the victim resides or where the family violence occurred. OCGA §19-13-2(b). (Figuring out whereto file when the defendant lives out of state may be complicated so, if you are unsure, consult an experienced family law attorney.)

The Petition for protective order must allege one or more acts of family violence. OCGA §19-13-3(a). If the Judge finds that “probably cause exists to establish that family violence has occurred in the past and may occur in the future,” the Judge may issue a temporary protective order to protect the victim from any further acts of violence. OCGA §19-13-3(b).

Within the next 30 days, the Court will schedule a hearing, which both parties will attend to make their case for why the protective order should or should not be extended. OCGA §19-13-3(c). As in all other civil cases, the victim must prove the allegations in his/her petition by a preponderance of the evidence. To prove his/her case, the victim should bring any and all evidence of the violence to the hearing including, but not limited to, pictures of injuries, damaged property, doctor’s reports, and witness statements.

If the victim proves his/her case by a preponderance of the evidence, the court may extend the protective order for a longer period of time. At that time, the court may also address concerns of child custody and support during the pendency of the order.

New Court of Appeals Ruling with Important Implications for Atlanta Family Violence Cases

Friday, September 21st, 2012

In May of this year, the Georgia Court of Appeals made an important decision which may impact how Petitions for Family Violence Protective Orders are handled in Georgia, including in the metro Atlanta counties. Specifically, Lewis v. Lewis, Court of Appeals No.A12A0601, makes it clear that trial courts are not permitted to condition the granting of a 12-Month Temporary Protective Order on a showing of a “reasonably recent” act of family violence.Prior to this ruling, some courts in Georgia were dismissing petitions brought under the Georgia Family Violence Act (O.C.G.A. § 19-13-1 et seq.) if the petitioner could not show a reasonably recent act of family violence. In the case which led to the Court of Appeals decision, the last act of violence had occurred more than a year before the petition was filed with the court. See here for details of case.

This new ruling may have a large impact on victims of domestic violence who previously chose not to pursue a protective order thinking too much time has lapsed since the acts of violence complained of. However, it is important to remember that the ruling in Lewis does not change the requirement under the Georgia Family Violence Act that a petitioner show that a protective order is necessary to “bring about a cessation of acts of family violence.” It therefore follows that more recent evidence of acts of violence are more likely to be persuasive with the court.

Our team of Atlanta family law attorneys is available to assist you in filing or handling issues under the Georgia Family Violence Act. Feel free to contact us if you have a family violence action you would like to discuss.

By Melissa Tracy, Associate, Meriwether & Tharp, LLC

Obtaining a Family Violence Protective Order in Georgia

Monday, August 13th, 2012

There are specific requirements for obtaining a family violence protective order in Georgia, and courts cannot add additional requirements to those listed in the statute. In a recent case heard by the Georgia Court of Appeals, the parties separated a following an incident of family violence committed by the husband against the wife, and the wife moved to a new residence, the location of which she tried to keep from the husband. Lewis v. Lewis, A12A0601(2012). The husband subsequently located the wife’s new residence and “on more than one occasion, he appeared at the residence unannounced and proceeded to harass and threaten” the wife.Id. at 2. After one particularly violent incident in late 2010, the wife took out a warrant for the husband’s arrest. The husband then agreed to stay away from the wife and moved to another state. Id.

A few months later, the husband moved back to Georgia and the wife served him with a petition for child support. Based upon the husband’s reaction to this lawsuit and her previous experience with him, the wife feared he would soon become physically violent with her again “because of the look on his face and his demeanor.” Id. at 3. The wife, therefore, applied for and received a temporary protective order under OCGA §19-13-3(b). At the hearing to extend that order for 12 months,however, the judge dismissed the petition for protective order because the wife could not show a “reasonably recent” incidence of family violence, as the last occurrence was almost a year prior.Id. at 4.

The wife appealed, arguing “the statute under which she sought a protective order, OCGA §19-13-3, does not absolutely require her to show a ‘relatively recent’ act of family violence.”Id. at 5. The Court of Appeals of Georgia agreed, looking to the plain language of the statute, which only requires that “family violence has occurred in the past and may occur in the future.” OCGA §19-13-3(b). There is no specific time requirement in this statute. In holding that the trial court abused its discretion, the Court pointed out that “[t]he recency of past violence may, of course, bear upon the likelihood of future violence, but a ‘reasonably recent’ act of violence is not absolutely required.” Id. at 6. The Court of Appeals, thus, vacated the order dismissing the wife’s petition and remanded the case for additional proceedings.

Can I get a temporary protective order in Georgia against someone who does not live in Georgia?

Monday, February 13th, 2012

A temporary protective order can be issued against someone who does not live in Georgia. O.C.G.A. §19-13-2 gives the superior courts of Georgia jurisdiction over a nonresident charged with a commission of an act of family violence. Georgia will only have jurisdiction over the nonresident if he or she, either in person or through an agent, commits a tortuous injury in Georgia caused by an act or omission outside Georgia and the nonresident does one of the following things:

• Regularly does or solicits business in Georgia; or
• Engages in any other persistent course of conduct in the state of Georgia; or
• Derives substantial revenue from goods used or consumed or from services rendered in Georgia.

However, if the act of family violence is the placing of harassing or intimidating telephone calls or text messages to a person in Georgia, this is not enough to give Georgia jurisdiction. The act of family violence is considered to have occurred in the State where the telephone call was placed or from where the text message was sent. If phone calls or text messages from someone out of State are the only acts of family violence, Georgia may not have jurisdiction over the Respondent.

By Emily Yu, Associate Attorney, Meriwether & Tharp, LLC

Custody awarded to father in Georgia divorce case despite evidence of alleged family violence

Friday, January 20th, 2012

The Supreme Court of Georgia recently affirmed a divorce action where the husband was awarded primary physical custody of the children despite evidence of alleged family violence. Finklea v. Finklea, S11F1804 (2012). At the final hearing in that divorce case, the parties “each testified extensively about acts of family violence committed by the other spouse, which led to multiple police reports filed against each other.” Id. at 2. In its final judgment, the trial court said it was making its decision “[a]fter hearing testimony of the parties and considering all the evidence tendered at trial.” Id. Neither party asked for written findings of fact supporting the custody award. Id. The trial court ultimately awarded primary physical custody to the husband.

The wife appealed, alleging that “in awarding primary physical custody of the parties’ two children to Husband, the trial court abused its discretion in failing to consider evidence of alleged family violence perpetrated by Husband against her.” Id. at 1. The Supreme Court of Georgia disagreed, holding that, under the circumstances described above, the trial court did consider evidence of family violence presented at the final hearing. Id. at 3. In addition, the Court found no abuse of discretion in the trial court’s award of primary physical custody to the husband. The trial court exercised its discretion in awarding custody to one parent over the other and “[w]here there is any evidence to support the decision of the trial court, this Court cannot say there was an abuse of discretion.” Id. at 3, quoting Haskell v. Haskell, 286 Ga. 112, 112 (2009).

Definition of family violence in Georgia

Monday, October 10th, 2011

Atlanta family law attorneys are often asked about the definition of family violence, and whether they are a victim under the laws of Georgia. In Georgia, “family violence” is defined broadly. The legal definition includes an occurrence of a felony or commission of battery, simply battery, simple assault, assault, stalking, criminal damage to property, unlawful restraint, or criminal trespass. OCGA §19-13-1(1) and (2). The statute also provides for a wide range of “family” relationships that qualify, and includes “acts between past or present spouses, persons who are parents of the same child, parents and children, stepparents and stepchildren, foster parents and foster children, or other persons living or formerly living in the same household.” Id.This definition of family violence extends to include roommates or previous roommates.

If you feel that you have been in a family violence situation or are currently going through a family violence situation, we highly recommend that you contact our Atlanta family law attorneys to discus obtaining a temporary protective order.

By Emily Yu, Associate Attorney, Meriwether & Tharp LLC

Atlanta Divorce Lawyers Guide to Divorce and Family Law Cases in Fulton County, Georgia: Guardian Ad Litem

Wednesday, February 25th, 2009

Our final blog entry in our Atlanta Divorce Lawyers Guide to Divorce and Family Law Cases in Fulton County, Georgia is in regards to the Fulton County’s Guardian Ad Litem program. A Guardian Ad Litem is an attorney who has had at least 20 hours of specialized training for child welfare and custody issues. In cases involving contested child custody, modifications of custody, modification of visitation, allegations of child neglect or child abuse, the Court can assign a Guardian Ad Litem to more closely evaluate the situation and report back to the court its findings. The Court or the Guardian Ad Litem can order psychological evaluations and drug testing if applicable to help in making a custody determination.

The cost of a Guardian Ad Litem can be rather high for most divorces in Georgia. Litigants should be aware that Fulton County offers a Guardian Ad Litem (GAL) at a reduced hourly rate.