Episode 126 - How to Defend against a Family Violence Restraining Order
Leh Meriwether: Welcome everyone, I'm Leh Meriwether, and with me is Todd Orston. Todd and I are partners at the law firm of Meriwether & Tharpe, and you're listening to the Meriwether & Tharpe Show. Here you'll learn about divorce, family law, tips on how to save your marriage if it's in the middle of a crisis, and from time to time even tips on how to take your marriage to the next level. If you want to read more about us, you can always check us out online, AtlantaDivorceTeam.com. And you can listen to previous shows at DivorceTeamRadio.com, and there's actually links there where you could subscribe to the show in iTunes, because that's where we rebroadcast in iTunes, in Stitcher, in SoundCloud, and Spotify and ... pretty much wherever a podcast is being played.
Todd Orston: And it's especially important ... when we two part series of shows on one topic like this one. So the one that we're going to be doing today that we'll present in just a moment, sometimes there's so much content and we're hitting it from different angles, and trying to give as much information as possible, that there might be one, two, maybe even three shows. So again, if you want to hear more about the topic, we actually might have shows that dig a little bit deeper, or hit it from a different angle.
Todd Orston: So having said that, Leh, what are we talking about today?
Leh Meriwether: We are talking about what do you do when you've been accused of family violence and you're confronted with an ex parte family violence restraining order?
Todd Orston: Right.
Leh Meriwether: Yeah.
Todd Orston: So jumping in, we've already done a show that takes it from what I'm going to refer to as the victim's point of view.
Leh Meriwether: Right.
Todd Orston: So somebody who is a victim of family violence, what steps can they and should they take in order to protect themselves and the method in Georgia is to get what's called a family violence restraining order, otherwise known as a TPO, a temporary protective order. And we went through, in detail, all of the steps that you can take, the protections that you will receive by taking those steps, in order to protect yourself.
Todd Orston: But, as they say, sometimes there's another side to the story. So that's from the victim's point of view. This show is going to be about the alleged aggressor's point of view. It's been filed, you've been served, you've been removed, let's say, from a home, and you have a hearing coming up. What steps do you need to take in order to protect yourself?
Leh Meriwether: So we're going to go through all the steps, like even before there is an incident of family violence. So let's ... I do want to just say this, because I ... we just ... there was so information the last one, the one thing I wish I'd had time to add in the last show, and I think it's important to add here, is that the victim, if you do have the order, you should be walking around with a certified copy of the order everywhere you go. So if you're a man, have it in your back pocket. If you're a woman, have it in your purse, wherever you might carry it, but at least have it in your car everywhere you go. Because if something comes up you want to be able to pull it out and show to the police.
Todd Orston: Well and let me say this, because the flip side is also true. If you are going through this process, let's say you are the purported and the alleged aggressor, and you go through this process and get a dismissal of that protective order, for a period of time you should keep a copy of that order-
Leh Meriwether: Yes.
Todd Orston: Handy as well.
Leh Meriwether: Good point.
Todd Orston: Because let's put it this way, we have seen situations, I have seen situations where the alleged victim, it was proven that maybe the aggression in question didn't occur, or it wasn't ... let's just say that the allegations weren't believed by the court, the matter is dismissed, but they still are trying to get that person in trouble. So it could be that they contact the police, "Hey, there's a protective order," if the police don't know that there's an order that dismissed it-
Leh Meriwether: Or maybe it hasn't hit.
Todd Orston: It hasn't hit their ... yeah, their database, and their systems yet, all the sudden you could find yourself in the back of a police car. So at least for a period of time, keep a copy of that order so that if the other party tries to do something related to it, you can pull that order out and say, "No, no, no, hold on officer. This was dismissed."
Leh Meriwether: Yep, "Here's my proof."
Todd Orston: That's right.
Leh Meriwether: All right, so the reason we want to do this is twofold. Because well first off, let me just say, the Family Violence Act was something that needed to be in place. There were too many incidences of victims of family violence because it's almost a silent, hidden crime that goes on in homes. And so it was a very necessary tool that was put in place by the legislatures of different states around Georgia. I mean, around the United States.
Leh Meriwether: Unfortunately, there have been times when that process, that tool, is now being abused. What was meant to be a shield has almost become a sword in certain circumstances. So we want to talk really in two overriding instances, one when you've been falsely accused. And two, maybe you did commit family violence, but it was one of those isolated things, not trying to excuse it, please, I'm being clear on this to the victims, but it was an isolated one time incident, and you need to do things to try to avoid that going in place, because you would never be able to ... if it's made permanent or 12 months, you're never able to carry a firearm again. So there's harsh consequences for this.
Leh Meriwether: And plus, we want to talk to people that have been falsely accused to make sure they don't ... because even if the accusations are lies, that ex parte order, if you violate it, you're still getting in trouble. So we're going to walk through these things to make sure that if you are an innocent, or this is a one time event, what can you do to defend yourself, what can you do to maybe enter into an agreement that avoids a family violence order, but still gives the victim, if it's a one time event, the comfort or the protection that they feel like they need. So ...
Todd Orston: I think it's a great plan, we should do it.
Leh Meriwether: Good. All right. All right, so I think today we're going to break down ... we're going to very briefly go over the law, I don't want to rehash it too much.
Todd Orston: And let me just ... just building actually on what you just said, the way I normally present it is, it is an incredibly necessary legal process. I mean, because there are too many people, I'm a former prosecutor, and when I was a prosecutor many moons ago, it was back in the day when ... and I'm not talking like ... I'm not 112 years old, I'm talking as if like ... but I remember when I was first getting started as a prosecutor, there were a lot of instances where someone filed a criminal act against a spouse, a boyfriend, whatever, because of family violence, and before they got to court, they came in, they dismissed because, "Oh, he promised to get better. Oh, she promised it won't happen again." And the prosecutors would just dismiss it, and then all the sudden there was a change. Meaning there was a ... you can call it a societal change, or a systemic change, where prosecutors realized you know what, there is this problem of victims constantly forgiving and being in this cycle of violence. And it wasn't changing. And so prosecutors got to a point where it was like no, it's not good enough for you the victim to come in and say you want to dismiss the charge, because remember a charge is against the state, not the victim. That's why when you see a criminal act, it is the state versus someone.
Leh Meriwether: Right.
Todd Orston: Because when you punch someone in the face, you violated their personal rights, but you committed a crime against the state. And so the state, we got to a point where we were like, no, we're not just going to automatically dismiss because this has happened nine times, and it's probably going to happen 10, so unfortunately we're going to take steps to make sure this never happens again.
Todd Orston: So it is a necessary process, but it's a highly abused process.
Leh Meriwether: Yeah.
Todd Orston: And we recognize that, and that's what we're going to talk about here, part of what we're going to talk about here. So ...
Leh Meriwether: All right, so the first thing, we'll do a recap of the law on the next thing, but the first thing is to try to avoid a TPO. If you're in a tense situation, you're on the edge of a divorce, you're pretty much going to know it. The first thing, if you start to get mad, leave the house. You're not ... in Georgia, you're not giving up any rights by leaving the house. There's some states out there, I think if you move out or you're abandoning your equity in the house, not so in Georgia. You don't have to finish the argument, you don't have to win the argument, just leave. Don't set yourself up to give someone the option, I mean the ... maybe you're so mad you're about to do something foolish.
Todd Orston: Don't escalate, don't allow things to escalate to a point where something happens that you immediately, or maybe not immediately, but you should immediately regret. And if you let it get to that point, unfortunately once it happens, it happens. You can regret it all you want, but you might land yourself in front of a judge, or in a police car, okay. So remove yourself from those tense situations. It might be the hardest thing you ever do, because ... I mean, I know I've gotten into arguments before where I just want to stand there toe to toe but sometimes I need to just take a deep breath. And so remove yourself, you're not giving up any rights, as a matter of fact you're doing exactly what you need to do. And if it ever escalates and let's say the other party files a TPO and you have good evidence that you've walked away from arguments, you've tried to keep things calm, then the court's going to hopefully hear that evidence and respect that, and maybe it will influence the judge to not issue a TPO if put in that position.
Leh Meriwether: Right. So another thing you could do, let's say you try to remove yourself from the situation, but the person's blocking you from leaving, I've seen that happen before, someone's screaming, "You're not leaving til we're done with this."
Todd Orston: False imprisonment.
Leh Meriwether: That is, but one of the things you should do is record it. Just pull out your phone, hit record, because if you're part of that conversation, that's legal and I say audio recordings. That way, because I had somebody ... that exact situation happen before, and the person recorded the entire exchange, then the other person called 911 basically lying about what really went on. When the police showed up he just played the recording. And he didn't get arrested, but she did.
Leh Meriwether: So let's try to ... but try to avoid it. Don't threaten someone, don't get so mad that, "Oh, I'm going to make you pay for this." Don't. Leave.
Leh Meriwether: The last thing is don't say ... even if you're saying it in jest, don't say something like, "I'm going to kill you," because that's a crime. And you know what else is a crime?
Todd Orston: We're out of time.
Leh Meriwether: Hey, but we're coming right back and when we come right back we're going to dive into this even more.
Leh Meriwether: Welcome everyone, I'm Leh Meriwether and with me is Todd Orston. Todd and I are partners at the law firm of Meriwether & Tharpe, and you're listening to the Meriwether & Tharpe Show. If you wanted to check us out online and read more about us, you can always find us at AtlantaDivorceTeam.com. If you want to listen to past episodes or go back and listen to this previous segment, you can hear us at DivorceTeamRadio.com.
Leh Meriwether: All right, so we're talking about ... last week we talked about what do you ... if someone's a victim of family violence, what do they need to do to get legal protections through the courts. And this week we're talking about those that-
Todd Orston: Accused of violence.
Leh Meriwether: Accused of violence, how do you defend yourself if you've been ... either, maybe you've made a mistake, or maybe it's a false accusation, how do you defend yourself. And we first start talking about avoiding the TPO altogether, like leaving the house. There was one thing I didn't get a chance to add because we ran out of time, someone may try to go call 911, and maybe you haven't done anything yet, so you're like, "Oh, well don't call them." Stopping someone from calling 911 is actually a crime.
Todd Orston: I can't tell you how many cases I worked on where the alleged aggressor grabbed the phone out of the other party's hand while they were trying to call 911, or they grabbed it after they called 911 and hung up. By the way, that doesn't work because the police immediately know the address of where you're calling from, especially if it's a landline, and they will dispatch police immediately. Do not do it. Don't try and grab a phone out of their hands. First of all-
Leh Meriwether: Oh and by the way, if it's a cellphone they'll call the number back.
Todd Orston: Yeah. Also, understand if you grab something out of someone's hand, even if your hand doesn't touch their hand, that is an assault. So the fact that you've taken something out of that person's hand, you've now committed a crime. So don't do it.
Leh Meriwether: And preventing them from calling 911 is a crime.
Todd Orston: That's right. So, if you're that angry, to your point in the last segment, walk away. Leave, leave for the night, leave for an hour, whatever you need to do to cool down, because it will hopefully avoid problems.
Leh Meriwether: All right. So let's talk about ... what happens next.
Todd Orston: Yeah, because here's the problem, and again now I'm addressing the alleged perpetrators of abuse. Once it happens, or once the other party calls the police and gets the ball rolling, or goes and files the TPO, it is out of your hands. Meaning, if the police just show up that evening, of course, hopefully you have a recording and you can show the court what is being alleged didn't happen. But let's say the other party goes to court, gets an ex parte order, meaning without you being present, can get an order and sheriff deputies suddenly show up, serve you with that, and they're like, "All right, you need to leave." That's not the time to argue, that's not the time to push back, that is the time to say, "Yes sir. No ma'am," whatever you need to do, and be incredibly polite and you follow the directions of the deputies to the letter.
Leh Meriwether: Yes.
Todd Orston: Because they are executing a properly filed court order, signed off by a judge. They don't care about what your story is, all right? So the first thing I would say is when the sheriff shows up and says, "Please either leave," if you're a the house, or, "Pleas do not go back to your home," understand at that point, you don't have the ability to push back or say no, or-
Leh Meriwether: Now you can ask questions.
Todd Orston: You can ask questions.
Leh Meriwether: So like they come in-
Todd Orston: But they may not have answers.
Leh Meriwether: Right-
Todd Orston: The deputy-
Leh Meriwether: But I mean like so let's say you are served at work, and it says you can't come home. You can say, "Can I go get ... because I don't have any other clothes, can I go ... can you escort me home so I can pick up my clothes?" And sometimes they will, and the orders, often they are allowed ... you can go in there for maybe 20 or 30 minutes, they will escort you, they will walk behind you in every room, and you can get clothes, or maybe there's some personal items, maybe there's a laptop you use for work that's at home. They will go with you to help you get it.
Todd Orston: Very limited.
Leh Meriwether: Very limited.
Todd Orston: Very limited, you are not going in to get the sectional, okay?
Leh Meriwether: Yes.
Todd Orston: You're going to be allowed to get your-
Leh Meriwether: Very few personal items.
Todd Orston: Very few personal items, and we went into this in more detail in the last show, the ex parte order is a 30 day order. So you're going to need to start making other arrangements, where you're going to stay, where you're going to sleep and all of that. So the bottom line is, you're not taking beds, you're not taking anything like that, you are taking limited personal items, just that you need, necessities.
Leh Meriwether: Yes. All right, and then read the order. Do everything that it says in the order to the letter. Now, and I've had people that were falsely accused but then they were like, "But my daughter is graduating from high school this coming up, I can't miss that. She would be really upset if I miss it," but if you show up, you violate it. You can ... it'd be a lot worse if you get arrested in front of you daughter. So just ... it's, yes, is it really bad that this has happened, but don't make it worse.
Todd Orston: Now I will say, if there is something like that, I would tell you that there might be a small chance that you can petition the court to modify the terms of the existing order on an emergency basis. In other words, if you filed a motion with the court and said, "I know this ex parte has been ordered. My daughter's graduation I would like to attend, can I have a ... basically the allowance of showing up."
Leh Meriwether: A carve out.
Todd Orston: The court, depending on the allegations ... if the allegations are very serious, more than likely the court's going to say, "I'm sorry, no contact." But maybe the court will see it in a different light and will say, "Okay, you have the ability to go to this, you will then leave, keep 100 feet, or 50 feet away from the other party, no contact whatsoever."
Leh Meriwether: But I think it depends on the availability of the judge, too.
Todd Orston: I'm not saying you have a good chance, yeah.
Leh Meriwether: "I'm sorry, you've got court next week, you can come explain it next week."
Todd Orston: Right, yeah. So I'm not saying that it is likely to happen, but judges do have hearts, they do understand that something like a child's graduation you don't want to miss, but again, to your point, follow the letter of the order.
Leh Meriwether: And here's another thing, turn off all social media on your phone. What you don't want to have happen is something get posted that suddenly shows up, or somehow messages, whatever it may be, the alleged victim, the one who's brought the action against you, now that could be technically a violation of the standing order, so ...
Todd Orston: Yeah, and it could be accidental.
Leh Meriwether: Or not the standing order, the TPO.
Todd Orston: Right, and it could be accidental, sometimes it's purposeful. I mean, we've seen situations where somebody is frustrated, they feel like they've been ... the perpetrator, the alleged perpetrator, and they feel they've been wronged, and then they go and they start blasting all these communications about their spouse. And they didn't ... unfriend, or whatever you call it-
Leh Meriwether: So suddenly stuff starts showing up in their feed.
Todd Orston: Yeah, and that can be and might be a violation of the terms of the protective order, which can land you in jail.
Leh Meriwether: Yeah.
Todd Orston: So in other words, make sure that no contact ... how about this, no contact means no contact.
Leh Meriwether: Right, and not even talking about. Because the other thing you don't want to have happen, because part of the order says that you can't communicate with them or have someone communicate on your behalf.
Todd Orston: Yep.
Leh Meriwether: So if you were to post something on social media, for example, and then your friend says, "Oh, well this can't be," they know you, they know there's no way you could've done what they accusations say, they pick up the phone and they call ... let's say her name's Julie, "Julie, what happened? What's going on? I just heard and is this something that y'all can work through?" Well she can interpret that to mean that the alleged perpetrator put him up to it. And then all of the sudden the sheriffs are showing up at wherever you're staying now, and they're like, "Sir, you violated this order, we're going to have to arrest you." So-
Todd Orston: Yeah, and again, you might have your day in court in the future. You might have the ability to stand up and defend and say, "I didn't put that third party up to it," or, "I didn't contact," or whatever the case might be. But it doesn't matter. If the police get an order from a judge saying, "Arrest that person," or if they are allowed or feel that they are warranted in arresting you for a violation, they're going to take that position of, "No, you're under arrest, we're going to book you, we're going to put you in jail," whatever. And then you can stand in front of the judge at some point in the future and explain all of this. So it doesn't change the fact that you're in jail.
Leh Meriwether: Yeah. So let's ... and I think this is a good point to segue way into this, there's a difference between innocence and being found not guilty. Or being found guilty. There's a difference. Because when you walk in that courtroom, there's four truths. There's your truth, her truth, the truth, and then the only one that matters in a courtroom, what does the judge think is the truth?
Todd Orston: And what is the actual truth? That's the big unknown.
Leh Meriwether: Right.
Todd Orston: Because it's a he said, she said. And one party's going to say, "I was abused," the other party's going to say, "I didn't do those things," and the judge is going to have to just make a determination based on who seems to be the most credible, and who has the most evidence, and all of those things, but the burden's very low, and if the court's main intention is to make sure that acts of violence don't continue to happen, then the court might just lean in the favor of ... "You know what, I'm going to give the benefit of the doubt to the alleged victim, I'm going to put this in place because I don't want something bad to happen."
Leh Meriwether: Right. And so you could be completely innocent, not having done anything, and you could still be ... they could find, "I find there was an act of family violence and therefore I'm going to enter this restraining order."
Todd Orston: Yeah, and it's not a criminal conviction.
Leh Meriwether: Right.
Todd Orston: This is still a civil matter, but what we're talking about is ... because it's not really, I don't like saying guilty or not guilty, it's really just an issue of the court can say, "I'm putting this in place because I think that the victim is credible, and yeah, I believe those things happened and therefore I'm going to make sure nothing like that happens again."
Leh Meriwether: Right. So and that's difficult for someone that they know they didn't do anything wrong to deal with. But you've got to, especially before you will go into court, don't let your innocence cause you to do something that leads you to violate the temporary ex parte order.
Leh Meriwether: And up next we're going to continue to talk about how you set yourself up for success and defend against a family violence protective order.
Leh Meriwether: Welcome everyone, I'm Leh Meriwether and with me is Todd Orston. Todd and I are partners at the law firm of Meriwether & Tharpe, and you're listening to the Meriwether & Tharpe Show. If you want to read more about us you can always check us out online, AtlantaDivorceTeam.com.
Leh Meriwether: Well today we're talking about family violence actions, in particular we're talking about defending against one. So maybe you've been falsely accused, or maybe you've made a one time mistake and you're trying to figure out how do I get out of this mess? That's what we're talking about today. Now last week we talked about what if you are a victim of family violence, how do you go about getting the protection you need? And I was going to get into the law, but we spent a lot of time on the last show talking about the law and those protections, so if you want to hear more about the law itself and why it was put in place, go back and listen to the last show. You can find that show at DivorceTeam.com. DivorceTeamRadio.com. So go check it out, we went a little bit in the history of why it was in place, why those things are the way they are, so that you can educate yourself there.
Leh Meriwether: All right. Now-
Todd Orston: Let's jump into-
Leh Meriwether: There was one thing I didn't get it, we ran out of time the last segment.
Todd Orston: Oh yeah, yeah, yeah.
Leh Meriwether: Once you've been served, because that's what we talked about last segment, what do you once you've been served? The other thing you shouldn't do is retaliate. Because some people will be like, "Well I'll take her off my insurance," or, "I just won't pay the mortgage or the utilities." Like let's say you've been asked to leave the house, don't do that. Most orders say you've got to continue to pay the bills, so-
Todd Orston: That goes to read the order. I can't tell you how many times I have had a client get into trouble, or potentially get into trouble simply because they didn't read the order.
Leh Meriwether: Right.
Todd Orston: And they did something and they thought they were justified in doing it, and yet they weren't, okay, it violated, specifically violated the terms of the order. So read the order.
Leh Meriwether: All right. So we're going to talk a little bit about setting yourself up for success, so the first thing I would tell you is call a lawyer, at least for a consultation. If you can't afford to hire a lawyer to talk into that courtroom and be there with you in the courtroom, at least consult with a lawyer, pay for their time for an hour. Sit down, talk about it. They're going to walk you through what you need to put together to get ready.
Todd Orston: Yeah, are you obligated to go into court with an attorney? No you're not. You can absolutely represent yourself in these matters.
Leh Meriwether: Right.
Todd Orston: You are at a big disadvantage.
Leh Meriwether: Yeah.
Todd Orston: If you don't at least get some advice.
Leh Meriwether: And let me say this too, because a lawyer's going to tell you whether you should even present a case, and what I mean by that is most of these family violence protective orders I see, all that we're dealing with is a civil side. But there are the occasions where the police arrest one party at the scene. So if there was physical violence, they'll arrest the person for assault, or assault and battery. And there's a criminal charge pending against that person too. So if you have that situation, you may want to plead the fifth. You may not want to present a case, because you want to protect yourself and get that ... the criminal action dismissed if you can.
Leh Meriwether: So when you go into that court, that's a civil setting, and you don't want to be compelled to testify against yourself.
Todd Orston: Well yeah, I mean, if there's a pending criminal matter, it could potentially be used against you, meaning your words.
Leh Meriwether: Right.
Todd Orston: If you admit to something, it could be used in that criminal matter. Or if there isn't a pending criminal matter, but you go in and you're like, "Well yeah, I did punch him in the head," well, that is now evidence that could be used-
Leh Meriwether: Against you.
Todd Orston: Against you, so a criminal charge could be brought against you at that point.
Leh Meriwether: Right.
Todd Orston: You need to be very careful what you say and how you say it, and an attorney can help you determine how you're going to present your evidence.
Leh Meriwether: And I usually suggest, try to stay with a friend or family member short term. Save some money so you can afford to hire a lawyer. If for whatever reason you weren't able to get a suit or the right clothing to show up in court, a nice dress or whatnot, or maybe your money's tied up. You're between paychecks and your spouse depleted the bank account, we've seen that happen. We've seen very successful people making lots of money, but they're literally ... the wife set everything up, depleted the bank account, shut off the credit cards, this person had very little money. And they just went to Salvation Army or Goodwill, I can't remember what it was, and got a suit. So when they showed up to court they looked presentable. So you definitely want to do that to set yourself up for success.
Leh Meriwether: All right, let's talk about preparing ... that's part of preparing for the hearing, but let's talk about more of the details of that. If there's witnesses that you need present, the allegations are at this particular party you did x, y, and z, but you know there's three witnesses who will come to court and say, "That actually didn't happen," you need to subpoena them. So you go to the courthouse, they can issue ... most of the time lawyers, if you hire a lawyer they'll take care of it. But the court can issue subpoenas and then you need to follow the law, we don't have time to go into the law about it, you've got to follow the law, make sure you properly serve it on your witnesses, but make sure they're going to be in court to testify.
Todd Orston: Yeah, let me take a step back for a moment. You have one shot at this.
Leh Meriwether: Good point.
Todd Orston: So you can't not do all of the leg work you need to do, do all of the preparation that you need to do, present all of the evidence that you want to present. You can't not do those things, get a result and then say, "All right, do over."
Leh Meriwether: Right.
Todd Orston: Once this is done, once you have your hearing, if an order's entered against you, you really don't have many options, other than just to live with that order. So you have one chance. So yes, I agree with you, if there are witnesses, fantastic, you need to have those witnesses. If there are documents, or audio recordings, you were talking about audio recordings, and in Georgia you have the right, the legal right to record. And I can tell you right now, if it's between a ... he said, she said ... in other words, gosh, I've had cases where I represent the alleged perpetrator and they're like, "I got a call from my wife," let's say, "And she said she's going to do whatever it takes to get me thrown in jail."
Todd Orston: And then a day later, the police showed up and nothing happened, and she made all these allegations, and okay. And I look at them, I'm like, "Did you record it?" "No." All right, well then you're going to say she said these things, the court may or may not believe you. She, of course, is going to go into court and say, "I never said those things, what are you talking about?" You have a recording, because I've had the opposite. Where someone's like, "No, she's been making threats like this for the last month and even said in one time that 'I don't care if nothing happened, I'm going to say that you punched me.'"
Leh Meriwether: Right.
Todd Orston: "And you'll go to jail." And then they walk in, they're like, "No, no, no, I can let you listen to it, I recorded it."
Leh Meriwether: Right.
Todd Orston: That is very good evidence, so get those recordings.
Leh Meriwether: Sometimes it's text messages. I've seen people put it in ... unbelievably put it in text messages.
Todd Orston: Yeah. So and that's what I meant by documentation. So there could be texts, there could be emails, there could be-
Leh Meriwether: There could be social media posts.
Todd Orston: That's right.
Leh Meriwether: But here's the thing, if she posts it on someone else's ... or sent a message to someone else-
Todd Orston: Yeah.
Leh Meriwether: Then you need that person to come in and testify and authenticate that message or that Facebook post, or whatever social media it is.
Leh Meriwether: And let's say you don't have witnesses, think about everything that was going on at the moment. Think about ... where you were, what was going on. Like here's an example. Our client reviewed the allegations against him, and he said, "That's not what happened." And I'm like, "Well, is there anybody ... was there any witnesses?" He said, "Well there was nobody in the room, but she called 911 and she didn't tell 911 these things that are in this petition." Really? We subpoenaed the 911 recording and sure enough, what she told the 911 operator was opposite of what she put in the petition. Needless to say, that ... when we had our hearing, it got dismissed, because we played the 911 recording for the judge.
Leh Meriwether: So that's the advantage of having a lawyer too, they're going to think through those things. You know, the other thing is you may want to go get the police report. Actually not may, you should go get the police report if the police were called. Because she or he may have admitted something inside that police report to one of the police officers.
Todd Orston: Yeah, I had a case where the police report, it was very clear. "We got into a verbal argument, and then he left." And then the police report ... or I'm sorry, then that party filed a TPO, and it was, "And he grabbed me and he threw me to the ground, and this and that," we got the police report, and it was just very clear, it was, "We got into an argument," and it said that he left. So why ... are you saying you didn't tell the police about being thrown to the ground and all the other violent acts? You didn't mention that to the police, because the police didn't put it into their report? And that got dismissed as well.
Leh Meriwether: Yeah. So think about ... there's all kinds of available, potentially, pieces of evidence. And that's where like even if you can afford an attorney, then meet with an attorney so the attorney can gather that evidence. If you can't afford one, if you meet with the attorney they can at least like let's say you do a consultation, they can give you these ideas and say, "All right, well I need you to go do this, go do this, this is going to help you."
Leh Meriwether: The other thing is, help your attorney or if you don't have an attorney, prepare the questions you're going to ask in advance.
Todd Orston: Don't think you're going to wing this.
Leh Meriwether: Yes.
Todd Orston: Don't think you're just going to go in, shoot from the hip, and basically come up with the questions. I have seen people try to ... what we call cross examine the other party. Because you will be given an opportunity, the victim will sit up on the stand and they will tell their story, and then you have the right to cross examine, and if there are contradictions between a police report ... but you have to know how to do that. If you think you're just going to wing it, I've seen people where they get up and you can tell, they're doing it on their own, they have questions, they firmly believe that it's not true what was said, but they don't know how to properly cross examine and the judge goes, "You're doing ... no, I'm sorry, do you have any actual questions? No, all right, please sit down." And they didn't get to get any of that out, simply because they didn't understand how to do it.
Leh Meriwether: They didn't spend the time preparing.
Todd Orston: That's right.
Leh Meriwether: All right, well up next we're going to talk a little bit more about preparation, and we're going to talk about what's going to happen on the day of and things that maybe you can do that will transfer this order away from being a family violence restraining order.
Leh Meriwether: Welcome everyone, I'm Leh Meriwether and with me is Todd Orston. Todd and I are partners at the law firm of Meriwether & Tharpe, and you're listening to the Meriwether & Tharpe show. If you want to read more about us you can always check us out online, AtlantaDivorceTeam.com. If you want to go back and listen to previous segments, you can go to DivorceTeamRadio.com. And even find the transcript of this show and others there in case you want to dig out some of the details to help you get ready to defend yourself from a family violence restraining order.
Leh Meriwether: All right, so we've been ... gosh, is this the last segment already?
Todd Orston: Yes, it is.
Leh Meriwether: Oh my goodness gracious. All right. So we've got to keep going. Most of the time, when there's a family violence restraining order, we most often see it between spouses. And there's usually a divorce around the corner, or at least an action for separate maintenance. But there are some times when it's just a boyfriend and girlfriend, so that's not pending. There are some times where they haven't filed anything, and they ... let's go back to the boyfriend, girlfriend example. Let's say that there are children involved. The court has the authority to not only grant a restraining order, but to award child support, and award other financial things, so it's important if you're in one of those situations, you may need to come to court prepared to present information about your finances.
Todd Orston: Well and here's an important point, or at least I think it's important. The family violence order should be directed to victims. So I've seen situations where let's say there was an altercation outside of the presence of children, and the party, the victim, goes into court, files, and asks for protection not just for themselves, but the children, i.e. "I want an order that prevents the aggressor from being near me, and being near the children." That's not proper, but if you don't present your evidence the right way and make the necessary requests of the court, then that could happen, the judge could enter an order, better safe than sorry kind of order, and say no contact with anybody. I have seen a lot of judges say, "Well I've heard all of the facts and circumstances, and yes, I believe there was a shoving match, and you got pushed, you got kicked, you got whatever. Kids weren't around, you've presented no evidence of violence towards the children, or any evidence that would lead me to believe that this person might engage in a violent act, you guys clearly just aren't getting along, probably heading towards a divorce if you're married. So no, I'm not going to include the children in the order of protection."
Todd Orston: Now, granted, you don't have a custody order, you don't have anything ... and you can't go to the house to get the kids, but nonetheless, you need to make sure that it is as narrow as possible. Meaning if you are trying to argue to the court that the order should not be put in place, and you get a sense that it's not going your way-
Leh Meriwether: Right.
Todd Orston: That more than likely the court's going to enter an order, you also need to be making the court aware that look, what happened between us, I don't agree with her facts, but I would never hurt my children.
Leh Meriwether: And the children weren't around. Or whatever it may be.
Todd Orston: They weren't around, so nothing ... a crime wasn't committed because of violent act or some kind of an act-
Leh Meriwether: Right.
Todd Orston: Wasn't committed in the presence of the children, so you need to be very clear to make sure that that order is as narrow as possible and doesn't include the kids.
Leh Meriwether: And if it ... but sometimes you need to come to court prepared for the worst case scenario that they do grant the order and say, "Well Judge, can the court carve out exceptions? Can I communicate with my spouse, my girlfriend, about this children and only about the children? Can we establish some parenting times so I can see them, we can set up exchanges. I found an apartment that's two miles away, we can meet at the parking lot of the Publix and exchange on these times."
Todd Orston: Or police department-
Leh Meriwether: Or police department, yeah.
Todd Orston: We can meet in the parking lot of the ... and do an exchange here.
Leh Meriwether: Right.
Todd Orston: If the court is not open to that, that leads into a discussion of okay, what is your next step? Because if a 12 month order is put into place that says no contact with her, or him, and no contact with the children, well obviously you're not happy with no contact with the children for a 12 month period of time.
Leh Meriwether: Right.
Todd Orston: So that means if you're married, you need to be thinking about either filing some kind of a petition to deal with custody issues, or a divorce that will deal with custody issues.
Leh Meriwether: Right.
Todd Orston: And that court, the divorce court, which is a superior court will have the ability to modify the TPO and basically do a carve out, or do whatever it really wants with that protective order, in order to allow for there to be contact with the kids.
Leh Meriwether: And that you could do the same thing with legitimation action, if you had not legitimated before, and you get hit with a 12 month you can file for legitimation and the superior court can address that and carve out an exception to the 12 month protective order.
Leh Meriwether: There was one thing else I wanted to add, that for people to keep in mind is that ... if you've got a ... in the divorce action, we kind of mentioned this in the last show too, but I want to hammer it here as well, you can work, especially through a lawyer and come up with a consent agreement that gets put in the divorce action. And then what happens is one party will dismiss ... the victim will dismiss the family violence restraining order, so you don't get hammered with that and the consequences of that, you won't have to worry about it. Like for police officers, they can't carry a firearm so they lose their job. So you can come in there ready to negotiate, "All right, you know what, I'll stay away. I won't come near the house, you can have temporary exclusive use and possession of the home, but I need these parenting times with the kids and I'll pay child support, can we put that as a temporary order in the divorce case?"
Leh Meriwether: So come to court prepared with a proposal ... a proposed order that could be filed in the divorce action. And oh, there was one other thing real quick, if the allegations are false but you are actually the victim of family violence, because I've had that happen before too, the husband filed an action for family violence, but he was the actual perpetrator of the family violence, you can file a counter claim for family violence, but it must be filed three days before, three business days before the hearing. If you don't do it in timely, you can't present your case to the judge. But I did have a case where that's exactly what happened and we presented her evidence, and the court dismissed his but granted ours and there was actually a funny story there. Somehow this gentleman managed to get through security, I have no idea, a 12 inch pair of shears, scissors. And I'm talking about, they were so sharp he could've just ... he could've killed someone with them. And he pulled them out of a ... in his cross examination of our client, pulled them out of his briefcase and started to walk towards her holding them in his hand, "Isn't it true you came at me like this?" He was almost tackled by the sheriff's deputies.
Todd Orston: All right.
Leh Meriwether: And the judge was like ... "I'm talking to whoever's downstairs because how did you get those through the metal detectors?"
Todd Orston: That's amazing because I've almost been strip searched for bringing a pencil into a courthouse, so that's pretty impressive that he got through with that.
Todd Orston: Let me say this, I am not going to spend any time trying to convince anyone, any of our listeners you must have an attorney. Going back to your point about the civil order, handling this in the context of a divorce order, or some other kind of a civil order, rather than pushing it through as a family violence protective order, which has all those other things like violation constitutes a felony, or potentially constitutes a felony of aggravated stalking, and your name is put onto the registry, all of those other things ... you can't posses firearms, all of those things are related only to a family violence protective order. That's one of the benefits of going through just a civil order where it doesn't have those same sanctions.
Todd Orston: But I will say, if you go in on your own, the chances of convincing the other party to do it as a civil order goes down.
Leh Meriwether: Yes.
Todd Orston: Because one of the things you have when you have an attorney is that you have the ... that X factor. The other party, the victim, is going to be, "Well, as much as I believe in this case, maybe there are weaknesses to my argument. Maybe there isn't a lot of evidence. And now this attorney's going to go in and argue that I'm not being honest, and maybe I'm not going to get this. And then maybe if I don't get this order, and we file for divorce, now it looks like I brought some false claim and the TPO court, which is a low burden, didn't even believe me, so ... maybe I should talk about and consider a consent order."
Leh Meriwether: Right.
Todd Orston: Whereas if you go in and you don't understand the process, don't understand how to present the evidence, don't understand all these things, and especially the victim has an advocate working with them provided by the court, then basically they may be a lot more reluctant and less likely to say, "Yeah, let's do some kind of a consent order." So it is beneficial to have an attorney there because it may push you in that direction, or allow you to even consider that as an option.
Leh Meriwether: And there is actually ... there is one more option, and that's, you can do a mutual ... like a mutual stay away order, or no contact order, that's not technically a family violence order. But that is an option, and I've seen that happen where the parties go ... I more so see it with boyfriend, girlfriend and "So like y'all broke up, it was a bad break up, can y'all just agree not to see each other anymore? Yeah, yeah, all right, well let's make this a consent order." And that's enforceable by contempt, so but you've got to present it to the court as a motion, and the judge is going to hear the facts and then make a decision, but you know one fact that's true we can't get around?
Todd Orston: Uh ... we're out of time?
Leh Meriwether: Yeah, we're out of time.
Todd Orston: You almost stumped me there.
Leh Meriwether: Yes, unfortunately we're out of time.
Leh Meriwether: All right, hey everyone, thanks so much for listening. You know, we've done other shows on how to get ready for court, how to testify in court, you definitely want to go back and listen to those if you're in a situation where you're facing ... either you're presenting or trying to get a family violence restraining order, or defend against one, go back and check out those episodes. Thanks so much for listening.