203 - Answering More of Your Family Violence Questions
- What do I do to get this situation handled and get this woman away from me?
- Can I get my domestic violence charges dropped since it's been seven years ago and I've never been convicted of any of them?
- Can copies of medical records left behind by ex fiancé be used in a domestic violence protective order proceeding?
- A judge heard my TPO complaint and told me that I was going around the system and holding it for another judge in a different county, what do I do?
Leh Meriwether: Welcome, everyone. I'm Leh Meriwether, and with me is Todd Orson. We are your co-hosts for Divorce Team Radio, a show sponsored by the divorce and family law firm of Meriwether & Tharp. Here you'll learn about divorce, family law, and from time to time, even tips on how to save your marriage if it's in the middle of a crisis. If you want to read more about us, you can always check us out online at atlantadivorceteam.com.
Leh Meriwether: I'm ready to go, Todd. Are you ready to go?
Todd Orston: I'm ready.
Leh Meriwether: Excellent.
Todd Orston: I was born ready. No, I'm kidding. I wish I was that confident. But yes, I think I'm ready for the show.
Leh Meriwether: Good. Here we go. The topic today, actually, we're just doing a, not just doing, we are answering more of your domestic violence questions because we had a lot, and we couldn't get to them all in the last show, so we figured why not just wrap them all up. Let's just get to the rest of them because we've got some good ones.
Todd Orston: It's unfortunate that we have so many good questions because, I mean, this is, obviously, it's a problem. It's a problem on the criminal side because a lot of the acts of family violence constitute not just a civil matter where somebody needs protection, but obviously it constitutes a crime. But there are a lot of victims. A lot of people who unfortunately suffer and become the victims of family violence. So, there is that criminal side, but there is also the civil side where parties can go out and they can obtain what's called a family violence protection order and get themselves protection.
Todd Orston: We've talked about this at length before, but the Family Violence Act, at least in Georgia, the Family Violence Act is so powerful in that, granted, it doesn't post a guard at your door, but what it does is the next best thing. Generally speaking, what it does is it gives you an order from the court, if the court grants it, I mean, it'll give you an order that if the terms of that order are violated, it constitutes a criminal act, of criminal, pardon me, aggravated stalking, and that's a felony.
Todd Orston: Basically, the protection is, in essence, the courts saying, "Look, something happened. I think it's enough," meaning the evidence is enough for me to grant this order. "Now if you violate this, if you go near that person, do something else, not only could you be charged for whatever else you do, but just by violating this order it constitutes a felony."
Todd Orston: I will tell you this, that over the years, prosecuting offices are taking this more and more and more seriously. In the past it was like, unless something really horrible happened, maybe they would move forward with prosecution on that new crime. Nowadays, many of the prosecutors out there, they take it so seriously and even small infractions, you could find yourself at the receiving end of a felony charge.
Leh Meriwether: We'll start off with the first question that, well, of course that's where we start off.
Todd Orston: I was going to go ninth, but I mean, I guess first logically makes sense.
Leh Meriwether: "What do I do to get this situation handled and get this woman away from me? To make a long and complicated story short to fit this, about two years ago, I had a fling with a woman and after it she became obsessed with me, harassment to me and my family of every type you can think of, even broke into my home. We went to court and ended up with a mutual restraining order. But once I got it on paper, there were things listed I did not consent to or know about."
Leh Meriwether: I mean, there are so many things to unpack in this question. "She claims she is pregnant with my child and since that was stated in court, the order says I have to have contact with her about the baby. But I know for a fact that child is not mine. The order states neither one of us are able to have contact, but then right after that says I need to provide a current contact information. It makes absolutely no sense. It is not proven the child is mine, and I do not want to have contact with her. I've made several reports every time she has contacted me since the order was made and no one's been able to do anything for me, and she keeps continuing to harass me. I feel like the system is failing me."
Leh Meriwether: You want to start?
Todd Orston: I'm tired. I mean, I'm exhausted. What I'm struggling with is where, I think this goes to the heart of your comment also, where to start because initially I'm like, does that even fall under the Family Violence Act? But moving beyond that, you went to court tried to get a restraining order. Instead of you just getting restraining order, it does beg the question whether or not she even filed and requested her own restraining order. Nonetheless, the court issued a mutual, meaning you are restrained from going near her just as much as she is restrained from going near you.
Leh Meriwether: When-
Todd Orston: Go ahead.
Leh Meriwether: I was just going to say typically what that means is you went to court and then somebody in there, sometimes the judge, and said, "Hey, will you just agree to stay away from each other?" Because if she did not file a counterclaim or her own action for family violence, the court does not have the authority to grant a mutual restraining order. This is in Georgia, at least. The only thing you can do is a mutual restraining order that is simply a civil order and not a domestic relations, a protective order because there is a huge difference and it falls under a different area of the law. The statutes, there are different repercussions for it, different criminal penalties for it. In fact, one has a criminal penalty and the other does not.
Todd Orston: This one does not.
Leh Meriwether: Which is why I left this question in there.
Todd Orston: This is what I would probably be telling this person. I would be saying, "All right, I hear you. A mutual restraining order, let's jump just to the fact that a mutual restraining order was put in place, and you don't like the fact that it has certain allowances, exceptions to the no-contact provision. What can you do? You don't want to have any contact? Well, the court said, 'I understand you don't want to have any contact, but a child's on the way. She says it's your kid, so there has to be some level of contact.'
Todd Orston: "Well, if you don't like that, and if you don't believe the child is yours, then one of the first things that I'd be doing is, I would say, establish the child's not yours. Get a DNA test. Push forward on that issue. If you can get some kind of a test result that shows not your kid, then potentially you could go back and modify that restraining order. You might be able to go back to court say, 'Hey judge, remember when you said we have to have contact? Well, she's still harassing me. She's still doing these things. Here's proof the child's not mine. No exception needs to be made because not my kid.' The court might take out, strip out that language, the exceptions that were included and just may get into a neither of you go near the other. Then, at that point, you've then at that point resolved your issue and the system hopefully isn't [crosstalk 00:08:07]-"
Leh Meriwether: How do you get a DNA test? You can get them, Labcorp does them. There's different companies that do DNA tests. So, if she says, "Well, you need to spend time with your son," let's say it was a son. He says, "Okay." He picks up the son and then does a DNA. So, during his parenting time, he does a DNA test to find out that it's not his son, and she continues to harass him, he could let her know, "Hey look, this is not my son. Here's a DNA test to prove it. Therefore, there is nothing to discuss and so this ends my communication with you."
Leh Meriwether: You need to read the language of the order because you need to make sure that communication is permitted, but then the next step would just be to file a motion for contempt because it's not, he says, I think he said in there he's made several reports, I'm assuming police reports. But if it's not a family violence restraining order under the Family Violence Act, then the police have no authority to do anything. They only have authority when it's under the Family Violence Act here in Georgia, and most other states are like that.
Leh Meriwether: So, he would need to file with the court that signed off on the order a motion for contempt for violating the mutual civil restraining order, and at that point he could present the evidence to the court and the judge could probably find her in contempt.
Todd Orston: Then can punish accordingly. But look, the system, sometimes people will say that the system, "I feel the system is failing me." This goes right to also the heart of the question of, do I need an attorney? Because sometimes it's not that the system's failing you, it's that you don't understand the system. It's understandable. I mean, there are areas that, I mean, I don't practice in. There are other fields where of course I have no knowledge. I could simply say, if I try to dip my toe in those waters, the system is failing me, but it could also very well be you just don't understand what your rights are and what your options are. This would definitely be a person that I'd say, "At the very least call and talk to an attorney because it may not be the system. There may be some absolute things you can do to help yourself, but you just don't know how to do it."
Leh Meriwether: Exactly. When we come back, we're going to talk about how a domestic violence civil order against you can impact your ability to get a concealed weapons permit.
Leh Meriwether: I just wanted to let you know that if you ever wanted to listen to the show live, you can listen at 1:00 AM on Monday mornings on WSB, so you can always check us out there as well.
Todd Orston: Better than counting sheep, I guess, right?
Leh Meriwether: That's right.
Todd Orston: You can turn on the show, and we'll help you fall asleep.
Leh Meriwether: There you go.
Todd Orston: I'll talk very soft.
Leh Meriwether: Welcome back, everyone. This is Lee and Todd, and we are your co-hosts for Divorce Team Radio, a show sponsored by the divorce and family law firm of Meriwether & Tharp. If you want to read more about us, you can always check us out online at atlantadivorceteam.com. If you want to read a transcript of this show, you can find it at divorceteamradio.com.
Leh Meriwether: Oh, by the way, before we get to the next question, I do want to say this first off, we really appreciate everyone out there that has gone and written a lovely review about this show. For those that may not listen to it live on the radio, but for others that are getting a lot of help from the show, that one of the best ways to, for others, if you're getting a lot of help from the show, we'd like to be able to help other people in addition to you, and one of the best ways to do that is by going and posting a positive review. Write what you enjoy about the show, what you like about the show, how you find it helpful, wherever you get your podcasts. I think iTunes is one of the biggest ones, so if you're listening there, we'd love for you to go post a positive review there, say what you like about it, because I just realized we've got a ton of reviews, but we hadn't had a written review in 2021 so far, Todd, so we'd love to have one.
Todd Orston: Give me a second, I'll write one. I'm not biased. I mean, I'll be honest with you. I don't like listening to you. No, I'm kidding. Joke, [inaudible 00:12:44]. Todd is fantastic, but Leh, I don't really know. No, just kidding. Just kidding.
Leh Meriwether: Oh, boy.
Todd Orston: No, absolutely. Look, the reviews, it's, I'll be honest with you, it's not an ego thing. It's a, we love getting this content out. We love when people can use this as a tool to educate themselves, that's why our website, we have thousands of pages of free information. These shows, other tools that we use, the only goal truly is we want people to have as much information at their fingertips and to use as possible, so these reviews help. Anyway, hopefully if we have helped you, your review can make sure that we are helping other people as well.
Leh Meriwether: Well said. Well said. All right, next question.
Todd Orston: All right. The question this person asks is, "Can I get my domestic violence charges dropped since it's been seven years and I've never been convicted of any of them. I'm not a felon. I'm trying to get my carry permit to protect my family with all this violence going on. Also, I've had consulting for anger through DFCS to gain custody of my kids, so I'm a better and older man now and just trying to do everything the right way.
Leh Meriwether: Well, what a lot of people don't know is that if you get a domestic violence restraining order issued against you, and I'm talking about a permanent one, and permanent doesn't mean forever, but one that's not what's called an ex parte, the ex parte one doesn't count. But if you had your hearing and a court issues an order granting the restraining order, then what happens is that will block you from getting a concealed weapons permit. Even though you don't get convicted of a crime, that still gets registered in the Georgia Criminal Index. It is out there that you have received that and can block you from getting a concealed weapons permit, even though you weren't convicted of a felony, a criminal matter, a civil matter.
Leh Meriwether: It's actually a point of a lot of contention because unfortunately sometimes domestic violence, the Family Violence Act was an absolutely necessary act that needed to be passed to protect a lot of people, mostly protect women. But as you know, we had a previous question where the man was being harassed and we've seen men be attacked before, but it's predominantly men attacking women. It needed to be passed, but unfortunately a lot of times it is abused. I don't want to say a lot of times, but unfortunately we have seen it in domestic cases, divorce cases, be abused, and that can impact your ability to obtain a firearm in the future.
Todd Orston: This becomes really a big issue when we are representing people where firearms are not just something that they want for their personal protection, but part of their employment. We have police officers, we have security guards. We have people in the military where it becomes a real game changer that if the order is obtained, that it can impact and would, not could, impact their ability even through their employment to carry a firearm. In other words, they could absolutely impact their employment.
Todd Orston: I mean, one thing that I would say is review the order, make sure that it hasn't expired. Sometimes people will think, well, they got the order and it's still good. It's still valid. It could be a 12-month order, which means that you're seven years out. Maybe the order isn't actually in effect anymore. If it was truly a permanent order, then that's where absolutely don't try and do this on your own, talk to an attorney, because trying to undo a permanent protection order is going to be incredibly difficult. Until you do that, the court can't, I don't believe, make an exception that you can carry a firearm in violation of the Family Violence Act. Unless you can somehow have that order basically set aside and it's no longer a permanent forever kind of order, then unfortunately there's not much you can do in terms of firearm possession.
Leh Meriwether: It's actually my understanding, Todd, that it goes when, just because you had one, like a 12 month on your record, it can block you from getting a concealed weapons permit period, just like a felony can. Even though you may get it, if it's a permanent one, get it dismissed, which you can do, it still may not allow you to get a concealed weapons permit, at least here in Georgia. Now, the law that law is subject to change. I actually haven't looked up that law in about a year, maybe it's two years, but last time I checked it blocked you. Which is why it's so important to have a lawyer when you show up to one of these hearings.
Todd Orston: Absolutely. Absolutely. All right. Next question.
Leh Meriwether: Can copies of medical records left behind by my ex-fiance be used in a domestic violence protective order proceeding? These medical records were left behind, the copies of them were present because they had signed the release consent form for them to be sent to our address. I'm taking this one.
Todd Orston: No, I'm taking this one. Oh, yeah. No. Obviously, HIPAA is a law that is meant to protect that type of sensitive personal information, medical records. So, you always hear people say, "Well, it violates my HIPAA rights." All right. Well, what we're talking about and it applies in the legal arena also, you're talking about there are these protections, but they are not absolute. So, you, A, as a person have to do things to make sure that the information is not published, that it is private and therefore the protections that HIPAA provides remain in effect.
Todd Orston: In other words, leaving behind, one, to address an issue brought up in the question, leaving medical records behind, meaning you didn't take any steps to protect that information, may very well result in a waiver of your right to claim any protections relating to those documents. If they were so important to you, and the privacy issue was so important to you, why didn't you take steps to secure that information? So, basically there's that issue.
Todd Orston: The secondary issue is even if you did take steps to protect certain documents and information, there are times where your mental health, let's say, or even physical health, but your medical records may be relevant and that relevance may actually trump the HIPAA protections. Meaning a court can say, "I understand that it is private, but we will in a very safe environment and in a very limited fashion, I'm going to allow the admission of that information because it is directly related to an issue such as custody." That's another thing you have to be thinking about that even if you did safeguard the information in question, it may still be able to come in.
Leh Meriwether: Well, the other thing is if you've made your health an issue in the case-
Todd Orston: That's right.
Leh Meriwether: ... the privacy, you don't really have the privacy because you've made your health an issue. A really good example, clear example is a personal injury case. You're hit by a car and in your assertion in your lawsuit is that, "As a result of this car accident, I received back and spinal injuries." Well, you can't say, "Well, you can't see my medical records because they're my private records." No, you've made your health an issue and therefore it's no longer private, at least on those particular things. That doesn't mean they can go seek counseling records and that sort of thing, unless you've made your mental health issue as well. If you've made it an issue, it's no longer private. The other side's allowed to see it.
Leh Meriwether: But, there is no yes or no answer to this question, it's a depends, and there's so many factors at play here. For instance, you don't know what's in those records. If they're still in an envelope and perhaps let's just say the guy has been well, you know what? We need a little more time to dive into this, so when we come back, we're going to continue to break down the answer to this question.
Todd Orston: Hey, everyone. You're listening to our podcast, but you have alternatives. You have choices. You can listen to us live also at 1:00 AM on Monday morning on WSB. If you're enjoying the show, we would love it if you could go rate us on iTunes or wherever you may be listening to it, give us a five-star rating and tell us why you like the show.
Leh Meriwether: Welcome back, everyone. This is Lee and Todd, and we are your co-hosts for Divorce Team Radio, a show sponsored by the divorce and family law firm of Meriwether & Tharp. If you want to read more about us, you can always check us out online at atlantadivorceteam.com. If you want to read a transcript of this show or go back and read transcripts of other shows, you can find them at divorceteamradio.com.
Leh Meriwether: All right, where we left off, we were talking about if, let's say, I'm going to add to this hypothetical. It's a legitimate, I mean, it's an actual question, but I'm adding some more facts to it. Let's say the fiance accused her boyfriend, potential husband, of family violence and then that left her medical records inside the home where they were living when she moved out and he believes those medical records may prove that he did not cause the physical injuries that his fiance is claiming he caused in a family violence situation in a domestic violence case.
Leh Meriwether: I've seen that happen before where the medical records were very telling and they proved that the person when they went to the, well, at least proved in the courtroom, that the cause of the injuries had nothing to do with a family violence situation, but more rather had to do with another situation that caused a person to fall and get injured in another situation and their explanation of how they were injured was on the record in their medical records. So, that made them very relevant and exculpatory to the person that had been accused.
Leh Meriwether: But if these records are still in an envelope, let's say they been mailed there and they were addressed to your fiance, you can't open the records. Not only are you violating her HIPAA rules because they were sealed, but you may be violating potentially post office rules. That can violate federal law.
Todd Orston: Which is, I mean, this is a legal term, but it's bad.
Leh Meriwether: Now, if the records are [crosstalk 00:24:49]. Well, the judge who can block it from getting in, let's put it that way if they found out that you obtained this information improperly, it can be blocked.
Leh Meriwether: But let's say they obtained the records and they pulled them out of the envelope and set them on the counter and then they just literally left them, well, then you may have a strong argument that they waived the right to privacy to letting them sit out in the open for anybody who came in the house to see. I even saw a case where somebody came by with their phone and took a few snapshots of the medical records that were sitting, they didn't actually take the records they just took pictures of them and they were used for cross-examination purposes.
Leh Meriwether: Now, every state has its own set of rules, so there may be evidentiary rules or case law in certain states that say, "That doesn't matter, it still doesn't come in." That's why it's so dependent on the facts of the situation, what's being alleged, how did you obtain these records, what's in the records.
Leh Meriwether: The last thing you want to do is, because we've seen this happen before, you think the records say something, you try to introduce them in court and the person sitting there snickering going, "These records are going to support my case. Yeah, sure. Let them in, judge, I'm not going to object." Then next thing you know the person's granting the restraining order because the records show that she told the doctor that her bruises were caused by her boyfriend or her fiance, so you've got to know what's in there first.
Todd Orston: You also have to understand that getting your hands on those documents or making use of those documents in the court proceeding, it's going to get hairy. I mean, A, there are things you need to do in order to even obtain them. I mean, I'm going beyond they were just left on the kitchen counter kind of argument, but getting access to the information, there are steps to get the information. Then on top of that, you may have to, in essence, battle not only against the party who doesn't want the information to be published, but against, let's say, you're going and trying to get it from a doctor, or a hospital, or a pharmacy, or whatever the case might be. They're going to push back because they're going to be in protection mode saying, "No, we have to protect this information."
Todd Orston: Getting the information is hard, arguing to the court that it is relevant and that relevance should, in essence, trump the protections, that becomes difficult. Also, it's not an all-or-nothing kind of thing. It doesn't mean you're automatically fighting for all medical records to be released. It could, using your example, it could be a report that you just need that one report because it just says one thing that is directly relevant to the claims being made in that court proceeding.
Todd Orston: The court's not going to say, "Well, you get access to everything," so sometimes your argument isn't going, or oftentimes is, "I don't need access to everything, judge, but this is why this need should constitute an exception to the HIPAA rules, and in this limited context, that limited documentation needs to be presented because it's relevant to these issues."
Leh Meriwether: This is one, I think, is very important for people to be aware of, this next question is. It can be very negatively impactful to someone involved in a custody case. All right. Did I read the last one or did you read it?
Todd Orston: I think I read it.
Leh Meriwether: Oh, okay. A judge heard my TPO complaint and told me that I was going around the system and holding it for another judge in a different county. I currently have temporary custody and I'm awaiting trial. My ex moved two weeks ago to another county without notice and committed domestic violence and abuse to my daughter in the county he now lives on his visitation weekend. I was told by two county advocates that I had to file where he resided and where the incident occurred. They vetted my claim and the judge was mad at me for going around the system and behind the other judges back.
Leh Meriwether: I was told that he would hold at my request and call the other judge, and he said I was shopping judges. My daughter is worse off now than before and nothing is signed. I was told that I was doing it correctly by even an attorney. Can this be smoothed over because I have evidence of abuse and given wrong information by two advocates. This is not fair, and I am seriously concerned that now he will be worse on her and I can lose custody all together.
Todd Orston: What the judge is talking about is what we call forum shopping. I'm not saying you engaged in that behavior, but I'm saying the court thinks that's what you did. So, the best advice I would have to this person to give to this person is, unfortunately right now, I do agree. You need to work to undo this. The best way to do that in this situation, especially if you are thinking that custody hangs in the balance, hire an attorney, figure out the jurisdictional, meaning make sure you are rock solid in terms of jurisdiction and venue.
Todd Orston: What is the proper court? Make sure that you're in the proper place, and you're filing in the proper court. That way, it's not just you saying these things. If you have an attorney who can stand in front of the judge and the judge is like, "Forum shopping, forum shopping," and the attorney can say, "Judge, here are the facts," and can present it the proper way. "This is where she lives. This is where he lived. This is where he moved. This is who she spoke with. We believe jurisdiction is proper in that court, so there was no forum shopping going on. She didn't even know one judge from another, so it's not a matter of trying to pick a judge or a court. It's a matter of she was trying to circumnavigate the jurisdictional ocean and figure out which way to go and how to get there. If she made a mistake, so be it, if she didn't make a mistake, judge, here's why we did what we did and why it's the right thing," and hopefully that will smooth it over.
Leh Meriwether: What we don't know, and I don't know if this is why the judge, I mean, may have had a factor in it, but let's say she had made similar allegations in their temporary custody hearing and the court found her allegations to not be credible and granted him a certain amount of parenting time. Now she's making a similar claim, and I'm not saying she's doing this, I'm just ... But we've seen that happen before where the person did not get the result at the temporary hearing that they wanted to, they got primary custody but the other person that barely have any contact with the child. Then as soon as something at least appears to have happened, they filed in another county.
Leh Meriwether: We don't know what the history of this particular judge is. Maybe that he or she has experienced something like that before which dramatically influenced his or her decision to do what they did. But I will say, I have been in the representation level, I've been on the receiving end of this where a person did try to circumnavigate the order that I had received for my client in the courtroom and they went to a different judge. That judge did not, well, the other person had lied to the other judge that there was no other case pending, so that ... But had they known this, that judge may have picked up the phone and called the other judge.
Leh Meriwether: What it did was, I'm sure you would be where I am, Todd, that if we had had this client, I mean, again, we don't know all the facts, but usually what we do is we file a motion for contempt in the existing case, even though he moved out of the county, the county is still where the original action was filed. Hey, when we get back, I just realized we're out of time. When we get back, we'll finish answering this question.
Leh Meriwether: I just wanted to let you know that if you ever wanted to listen to the show live, you can listen at 1:00 AM on Monday mornings on WSB, so you can always check us out there as well.
Todd Orston: Better than counting sheep, I guess. Right?
Leh Meriwether: That's right.
Todd Orston: You can turn on the show and we'll help you fall asleep.
Leh Meriwether: There you go.
Todd Orston: I'll talk very softly.
Leh Meriwether: Welcome back, everyone. This is Leh and Todd, and we are your co-hosts for Divorce Team Radio, a show sponsored by the divorce and family law firm of Meriwether & Tharp. If you want to read more about us, you can always check us out online at atlantadivorceteam.com. If you want to read a transcript of this show or other shows, you can find them at divorceteamradio.com.
Leh Meriwether: We were talking about, before we ran out of time in the last segment, we were talking about the forum shopping. The question where there was an existing case in a certain county for, sounds like a divorce, where the person asking the question had received temporary custody of the minor child. Then the soon to be ex moved out of the county during the course of the case, and then there were as a family violence instance against the daughter, and she filed in the county in which the person resided and where the incident occurred, and that she went to a court for and the court felt like she was forum shopping, which knowing that has happened a lot, that is not actually not an unusual response when there's an active case going on in another county.
Leh Meriwether: That's why I thought this question was so important because people need to be aware of that. Her concern is a valid concern. She's worried she could lose custody altogether. Remember the last show, Todd, we were talking about if you don't do things a certain way, or you don't have the right evidence, it can impact your custody case because the court thinks you're making things up.
Todd Orston: Absolutely.
Leh Meriwether: That's what you have to be very careful here. As a general rule, there are exceptions to every rule, but as a general rule, I like to stay in front of the judge that we have been in front of because then it doesn't look like you're trying to run around. Then if there's something that happened that we can prove, then you file an emergency motion and go back in front of that court, that judge, and file an emergency motion for a hearing to modify the custody arrangement based on the family violence incident. Or, at a bare minimum, we use that as a basis for the appointment of a guardian ad litem.
Leh Meriwether: We don't know all the factors, but as a general, we try to stay in front of the judge that we've been in front of. Having been on the receiving end of multiple occasions where it'd gone to court in one hearing, and then the person tried to circumnavigate that judge by using some form of, what do you call it? Well, you know what, let's take this one step further. Let's say they did get a TPO in front of this judge in another county, and then you went back in front of the original judge. That judge, since they're both superior court judges, can undo the terms of that TPO.
Todd Orston: That's right.
Leh Meriwether: That's another reason why you want to be very careful there.
Todd Orston: One other thing I will say, that there is strategy that goes into these types of situations. Let me be more clear. There are courts that have dedicated judges handling the family violence protective order cases. But if there is already a pending case, it doesn't mean you must move the case to the, let's say there's a custody case pending, that you must move the case to that custody judge, but strategically you may want that. If you are the victim in that case, and you want these facts to be heard by the same judge because the judge doesn't handle the family violence matter and then forget all about it when they're dealing with the custody case, if you think strategically you want that judge to be hearing about all this bad behavior, it may be something where you move, you let the court know that, "Hey, by the way, there's another case pending," and they may decide, and the court may decide, "I'm going to push this over to that court."
Todd Orston: If there's a divorce pending, it's not uncommon for the judge handling and the staff in the family violence case to say, "Yeah, we're going to transfer this over to the divorce court." If you are the victim and you have a good, strong case, that may be a benefit. If it's not that strong a case, A, you probably shouldn't have brought the case in the first place, but you probably don't want that because now that same judge who's dealing with divorce and custody and other issues is going to hear a weak case and may feel like you brought a frivolous claim. They may carry that bias into the divorce. But there's strategy that goes into if there's another judge to move it to properly, that there's two judges that could properly hear it, that definitely is something that needs to be considered.
Leh Meriwether: Don't take what we're saying to mean that we're trying to minimize the claim that there've been domestic violence against the daughter. We're just talking about if you don't do it the right way, if the person did it, they can get away with it. In fact, they can use it against you in court. I've seen it happen before. You want to make sure that if you really want to protect your daughter, that you, you get the ... I'm not sure which lawyer this person spoke to, but anyways, I would have hoped, I don't know. I won't say anything because I don't know what that hell you were told. I'm not going to go there because lawyers, I've said, "Hey, in this fact scenario, what would you do," and given advice on that, and it turned out that I'd only gotten half the facts, and if I'd gotten the other half of the facts, I would have given a completely different recommendation.
Todd Orston: That's a good point. How about this? How about we move on to the next question?
Leh Meriwether: I like that. Let's do that.
Todd Orston: All right. All right. How about one about mediation? The question is, "Does mediation stay any discovery in a pending custody case, and if I believe violence may follow, can I bypass mediation?" Question goes on to say, "There is a standing order requiring mediation. Does this interfere with my discovery at the time of filing my answer? And I fear violence will follow from a decision adverse to the other parties demand, can I request that mediation be bypassed? Or in the alternative, what are my other options?"
Leh Meriwether: Mediation does not stay any discovery. If you need discovery from the other side, you can ask for mediation to be rescheduled so that you can obtain the discovery you need in order to settle your case. In fact, there's an affirmative duty, at least here in Georgia, to make sure when you show up to mediation that you have your most current information.
Leh Meriwether: A lot of standing orders actually have things like you've got to show up to mediation with the child support worksheets and domestic relations financial affidavit. There's actually a list of things that you're supposed to have ready for you when you show up to mediation. If you can't get those ready because you need some discovery, which we've had happened before, we just rescheduled the mediation until we obtain our discovery.
Leh Meriwether: All right. Now, on this concern that violence may follow afterwards, well, first off, mediation, there's two things I'm going to say about mediation in this context. Number one, mediation is a voluntary process, meaning if you order to it, you have to go to it. But coming up with a resolution is volunteering on both your sides. It requires both sides to agree to a settlement. If one person's not agreeing, then there is no settlement. So, there will be no decision that comes out of this by a mediator. They're an impartial neutral, they're just to help guide you to reach a settlement.
Leh Meriwether: Now, there hasn't been any allegations of preexisting or previous domestic violence, but let's say there were. Well, there's mediators trained to mediate in just those scenarios. In fact, there's multiple levels of mediation training. I'll be real quick. The base level is 40 hours of very intense training and there's things on top of that, but as far as the training. Then if you want to become a domestic mediator, there's another 40 hours. Then if you want to handle family violence or domestic cases involving family violence or allegations of family violence, there's an additional 20 hours of training, roughly 20 hours of training, in order to be able to mediate those scenarios and they create safety measures to protect the victim of the family violence from it happening. In fact, the mediator is obligated, it's a confidential process except for issues of abuse or any sort of threats. Any sort of threats can result in the mediator reporting those threats to the court, or there's just two exceptions to the confidentiality of the mediation process.
Leh Meriwether: All right. I was being quick because we're running out of time.
Todd Orston: Very quickly I'm just going to make a quick comment that it is correct. That the concerns about violence, the mediation process, most alternative dispute resolution offices in most counties and any mediator that you might go to is going to be able to take that into consideration. That's what separate caucusing is all about where you will be separated, you never see the other party, and you don't have to be in the same room, don't ever have to see them.
Todd Orston: Most of the mediations I handle, even when there's not threats of violence, I'm one of those attorneys where I believe most of the time keep everybody separate so that we can better control the emotion, really focus on the business of getting people divorced or dealing with the custody issues. So, the protections will be there.
Leh Meriwether: That's how that when they say, "Hey, well, I'm concerned that violence may follow the mediation," well, if there's someone who's angry, then that's not going to be enough to stop the mediation. They will create safety measures to make sure you're protected, but they won't postpone the mediation. I hope that answers the question.
Leh Meriwether: Unfortunately we're just about out of time. Everyone, thanks so much for listening and we'd love to hear from you. If there's questions you want us to answer, send us an email at firstname.lastname@example.org. Thanks so much for listening.