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Episode 125 - How to get 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 & Tharp. You're listening to the Meriwether & Tharp 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 if you ever want to go and read transcripts of this show, because I know people love to do that, or just listen to, if you want to listen to it again, you can find us at divorceteamradio.com
Todd Orston: I got to tell you, every evening, my family, we gather around, read transcripts, listen to old shows. All right, maybe not. But, we have some great content. If you want to listen to things about how to save the marriage, how to deal with divorce related issues, or if you know anyone who needs that information, it really is a great source. So anyway, let's stop talking about the past, let's talk about the present. What is today's show about?
Leh Meriwether: Today, we're going to get pretty serious. I probably should give this caveat that at Meriwether & Tharp we take divorce and family law very, very seriously. But from time to time, we try to inject a little humor just to keep the show a little bit lighthearted, but we take what we do very seriously. Today is a serious topic, and we're going to be talking about family violence. We're going to be talking in particular how to protect yourself from family violence from a legal perspective. We're going to be focusing on family violence restraining orders, protective orders, and we're actually going to make this a two-part show.
Leh Meriwether: The first part is going to be about family violence protective order. So if you're a victim of family violence, and you need protection, this show is for you, it's to lay out how to get protection through the courts, so you do not have to continue to be a victim of family violence. Then, next week's show, we're going to be talking about if you've been accused of family violence, how do you defend yourself, because unfortunately, there are situations where people take advantage of the Family Violence Act, we're going to explain all that, what it means and everything. But there are sometimes people take advantage of it to gain an advantage in the divorce. So we're going to talk about in the next show how do you deal with those situations.
Todd Orston: All right. Let's start, as they say, let's start at the beginning. Let's first talk about what generally is a family violence restraining order, also commonly known as a temporary protective order. Start there, what is it?
Leh Meriwether: Often, you hear the term TPO, if we say TPO during this show, we mean temporary protective order. The family violence protection that's provided on the Family Violence Act, and right now we're talking about specifically Georgia, a lot of states have something very similar, so if you're not in Georgia, and you're listening to this show, you'll need to double-check with your state's laws, but most laws are very similar, there may be some little differences here and there, but for the most part, they're the same, the same concept.
Leh Meriwether: The Family Violence Statute is very narrowly applicable to certain people and certain relationships. So I'm going to just list those out. So it's 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 person's living or formerly living in the same household. So if you don't fall into one of those categories, this kind of protection won't apply to you.
Todd Orston: Yeah. Now, let's be very clear. It doesn't mean that you can't get protection. If you are the victim of violence, it doesn't mean that you can't be protected, it means that under this specific code section, you can't get protection, but there are other avenues, you can get a stalking order, you can do other things. Of course, if there's violence, you can go to the police, that can result in criminal charges being brought, which then will offer a level of protection, because usually if someone has committed a crime, they're arrested, they bond out their conditions of bond, and that condition of bond could be no violent contact, no contact period, no contact between the aggressor and the victim, or even the victim and the victim's children.
Todd Orston: So there are ways to get protection, but again, what we're talking about in this show is the Family Violence Act. So it is narrowly applied to a certain group of people that you just went over.
Leh Meriwether: The reason I came up with this act is because this kind of violence is something that's not seen in public, it is typically something that happens behind closed doors, inside a home, or residence, and it needed special attention, because it is not your typical situation. There's one exception you hear about, a parent and a child, "Does that mean I can't spank my child?" There's an exception under the Family Violence Act for corporal punishment.
Todd Orston: Yeah. Reasonable corporal punishment.
Leh Meriwether: Exactly.
Todd Orston: Yeah. Any children that are listening, if you get spanked, you cannot file for a Family Violence Act protective order. But it does, jokes aside, have to be reasonable corporal punishment. So that's the basics of what the protection that you can get under the Family Violence Act is. It is intended to give people, who are suffering, a level of protection. We're going to go into a lot more detail because the way that the law goes about it is very unique. There are aspects to this law that won't apply in other areas. We're going to jump into that, we're going to explain the process, we're going to explain, meaning how to go about getting the family violence protective order from the court, and we're going to explain in more detail reasoning behind it and the protections you can get.
Leh Meriwether: So the statute, continue to give a little background behind the statute and everything, what constitutes an act of family violence is any felony, which often you'll see it's making a terroristic threat. So, "I'm going to kill you." Or, "I'm going to beat you up if you do X, Y, and Z." Those are making terroristic threats. This is one example of a felony. But the commissions of battery, simple battery, simple assault, assault, stalking, criminal damages to property, unlawful restraint, or criminal trespass, those are examples of crimes for which a family violence restraining order can be issued. Understand this, a simple assault or a simple battery can just be touching someone.
Todd Orston: An unlawful touching.
Leh Meriwether: Right.
Todd Orston: So, somebody just pokes you in the chest, doesn't leave a mark, doesn't cause a bruise, that could be enough. Now, again, you're going to be standing at some point in front of a judge, and if you're in a relationship, and there is no history of violence, and the only thing you go in with is a, "We were arguing, and he touched my chest, or he touched my shoulder." The judge may reject your request for a protective order.
Leh Meriwether: Right.
Todd Orston: All right. I can tell you right now that more than likely if someone came to me, and I'm just being very accurate, and honest, if someone came to me and said, "We've been married for 10 years, no history of violence, we had an argument the other day, and he, while we were arguing, touched me, or she touched me. I want a protective order." I would probably be advising, "I don't think that you should go that route, because it's just not enough to justify a protective order, specially under this code section."
Todd Orston: But, if we're talking a real offensive touching, we've had people thrown to the ground, kicked, hit with items, just in constant screaming, yelling, verbally abusive behavior that causes somebody to have a fear, a reasonable fear for their personal safety, then absolutely. If you fear that not only you don't not only like the actions that occurred, but you fear that it could happen again, that that person, there's a propensity for that kind of behavior in the future, then absolutely you are a candidate for protection under this code section.
Leh Meriwether: When we say yelling and screaming, people get in fights all the time in marriages. If someone is yelling at you, that doesn't automatically give you family violence.
Todd Orston: That's right.
Leh Meriwether: So if someone's screaming at you at the top of their lungs, calling you something like, let's say you're standing at the wall, and they punch the wall, and put a whole in the wall right next to your head. That could be considered criminal damage to property.
Todd Orston: It could be an assault, it depends. Because I've had that. Just to jump in, because I understand your point.
Leh Meriwether: [inaudible 00:08:53], in that instance, I think that would constitute family violence.
Todd Orston: Yeah, because of the proximity to the victim. Now, if they're 25 feet away from you, and they get angry, take a glass they're drinking out of in the kitchen, and they throw it on the ground, and that's the end of it, other than the yelling, then no. If they throw that glass at the person, or it goes whizzing by their head, or close by, and hits a wall near them, then that's different. That was an assault that just missed. Had it made contact, then it becomes a battery.
Todd Orston: Again, you have to look at it, or use a reasonableness kind of lens, because that's what the court is going to do. If you just describe something where somebody got angry, there was one little flash of anger, and that's it, then you're probably not going to get the protective order. But if there's again, a routine, a pattern, and it's really, really severe, then the judge is going to have no question about giving you the protection that you need.
Leh Meriwether: Right. We're going to continue up, next we're going to continue to dive into this. We're going to break down what exactly the court can award, and we're going to walk through the steps if someone's been the victim of family violence, how do you get the process started? What happens next? How do you present your case in court? At what point should you hire an attorney? We're going to go into that in detail so that you know what to do if you are currently a victim of family violence. So we're going to dive into that.
Todd Orston: And we're going to dive into it. I guess. Right, yeah. I saw you struggling there for a moment.
Leh Meriwether: Because there was something else I wanted to say.
Todd Orston: So just to repeat for our listeners, we're going to dive into it and go over those things, I promise. And we'll have more content during the [inaudible 00:10:46].
Leh Meriwether: We'll be right back.
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 & Tharp. You're listening to the Meriwether & Tharp Show. If you want to read more about us, you can always check us out online, atlantadivorceteam.com. Today, we're talking about something that's very, very serious, we're talking about family violence situations, in particular how do you get protection if you're a victim of family violence. In the last segment, I was talking about diving in-
Todd Orston: You had a moment.
Leh Meriwether: I had a moment.
Todd Orston: You definitely had a senior moment there for a second.
Leh Meriwether: [crosstalk 00:11:42]. I wanted to launch into this long list of things, I realized, "I only have a few seconds left to do it," and well I just missed it.
Todd Orston: Justifying and explaining it in the next segment is a good use of time. Seriously, it's fantastic. So in segment two, what are we going to jump into?
Leh Meriwether: All right, let's talk about what is it in the process, like how do you get a family violence protective order, or TPO, temporary protective order, how do you get it started?
Todd Orston: Yeah. Just to break it down a little bit, what we're saying is you have suffered some kind of a violent act, or it could be stalking, or it could be harassment, something that would fall under the code section. Now, you say to yourself, "I need protection, I need to do it." Where are you going to go? What are you going to do? What do you have to file? What help is there out there for me? That's what we're going to go into.
Todd Orston: Before we do that, let's talk about, if you don't mind, let's talk about some of the nuances of the Family Law Act that, or Family Violence Act, pardon me, that make it so different than other areas of the law. Okay, because you can get protections like we said. But there are aspects of the law that, because I want people to understand, I know you do too, what is this going to do for me?
Leh Meriwether: Right.
Todd Orston: Right? Because now someone might be sitting on their couch, at their kitchen table, saying, "I don't want to suffer anymore. I can't endure that kind of behavior again. I need protection. Okay, I heard someone talk about this, what will it do for me?" All right. Then, I absolutely will jump into the actual process.
Leh Meriwether: All right, so, when you go to the court, and the court ... let me just go ahead and set it up with the process. You go to the courthouse. If the police had been called after a family violence incident, a lot of time police officers will give you a pamphlet about family violence and what to do. But if you haven't been given that, or you haven't called the police, go to the courthouse, let them know you've been a victim of family violence, and that you need a temporary protective order. They will refer you to someone to help you fill out the form. These are actually templated forms that all the counties, and at least here in Georgia, use.
Leh Meriwether: You fill them out asking for specific relief from the court. A lot of counties have actually advocates, they're not lawyers, but they're just advocates there to help you write, make sure you put all the information in there, so a judge can grant it. Here's the first thing that's granted, it's called an ex parte temporary protective order.
Todd Orston: Parte.
Leh Meriwether: Not that parte.
Todd Orston: Not that kind of a parte?
Leh Meriwether: No.
Todd Orston: Okay.
Leh Meriwether: No, ex parte meaning, it's Latin, it just means you go to tell your side of the story to the judge without the other side telling their side of the story at all.
Todd Orston: That's a but wait, Leh, moment. But wait, constitutionally speaking, people have the right to what is referred to as due process. They have a right to be in court, they have a right to have their side heard and not to have orders being entered against them without them having the opportunity to defend themselves. That is a basic tenet of the law, how could this be possible?
Leh Meriwether: Because this is such a unique circumstance. The person is ultimately given their opportunity. But here's what happens. The ex parte order is put in place, but before the Family Violence Act, here's what did happen. I'll probably best explain it with a hypothetical. I'm going to use the traditional stereotypes. So there's a girlfriend at home living with her boyfriend. The boyfriend is beating the girlfriend. She can't take it anymore, and so she goes to the court for protection. The court says, "Okay, we'll schedule a hearing, but I got to give him notice." So-
Todd Orston: Meaning, and I'm sorry to interrupt, meaning pursuant to the traditional legal methods where to start a legal action, you would file something with the court, the court would say, "Okay, have the other party served." They will know that this is pending, then we'll schedule time for everybody to come into court, it's a process, that would be the traditional way. So you're saying now, instead of that, something else happens.
Leh Meriwether: Right. Instead of that happening, the other side given the notice, the court immediately issues the order and the sheriff executes it. The person, if they're living, like in the example I gave, the boyfriend would have to be removed from the home, and could not contact her until the hearing. At the point of the hearing, then he's going to give his opportunity to tell his side of the story.
Leh Meriwether: But what was happening in the past was the boyfriend would do one of a few things, he would either A, intimidate her, say, "If you go to court, I'm going to kill you. Or I'm going to do something," or sometimes he actually would beat her up saying, "This is what's going to happen to you if you testify against me in court." Or he would threaten, "I'm going to take the kids." Let's say they had children together, "And I'm going to take off. And you'll never see your children again." So she would usually back down, and dismiss her action before it was ever heard. Or he would have friends intimidate her, there were situations where the boyfriend actually killed the girlfriend, or husband killed the wife just to avoid the problem.
Leh Meriwether: These were very serious circumstances. So the legislature decided, "We have to have a very serious way to address this and still give someone their due process rights." So this is the kind of relief that the court can grant under Georgia's Family Violence Act. They can direct the respondent, that's the person who's been accused of committing acts of family violence, they can direct the respondent to refrain from such acts, they can grant a party possession of the residence or household of the parties, and exclude the other party from the residence or the household, so like in this circumstance, a sheriff's deputy would show up, the girlfriend would fill out the form, it would be presented to a judge.
Leh Meriwether: Sometimes, depending on the county, she would actually go talk to the judge, but the form would be presented to the judge, if the judge agreed that it met the threshold, and that's a very low threshold that there's been family violence, the court will grant it out of abundance of caution, deliver it to the sheriff's deputy, who would then go and serve the boyfriend, in this case, in this hypothetical we're using, and the boyfriend would be given maybe 30 minutes to go collect his clothing and personal items, and then he would be escorted out of the house. He would be served with it. Then during this short term, the girlfriend would have exclusive use and possession of the home.
Leh Meriwether: Sometimes, you could require the party to provide alternative housing, so sometimes the court order could say, "You've got to provide housing for the other person," that's not what usually happens. I'm just going through the options the court has. The court can award temporary custody of minor children and establish temporary visitation rights. The order can [inaudible 00:18:51] the eviction. So let's say the boyfriend beat up the girlfriend, and kicked her out of the house, but the kids are there. The court can order that she gets to come back into the house, and he has to leave the house and she gets to stay there with the children.
Leh Meriwether: The court can order child support payments. We'll get into that a little bit later, a lot of times they don't. But it's available to the court. The court can order support for the spouse in a family violence action. The court can order, if the parties are married, obviously, provide possession of personal property. So cars, and certain vehicles can be awarded. They can obviously, it can be order that you can't come within 200 yards, or 100 yards of the person's residence, or work, or any place that they may be. Or them personally too, you can't come in within 100 yards of the girlfriend in our example.
Leh Meriwether: They can also, in certain circumstances, this is when we get to the final hearing, they can order that the respondent attends either psychiatric, or psychological services, as a further measure to prevent the recurrence of family violence. So we just went through the whole list of everything the court ... now, the court doesn't grant all of that in the ex parte, they just, they set up, "Let's protect the alleged victim until we can get to court."
Todd Orston: And the counterbalance to the, for a lack of better way of putting it, the violation of due process rights, the setting aside of that right temporarily in order to provide somebody with a level of protection is that there are very strict rules about when the final hearing, the hearing where after service by the sheriff deputy, the defendant will have, or the respondent will have the opportunity to come into court and have his side heard. So it has to happen within 30 days. If it doesn't, unless there's an agreement by the parties that there can be an extension, then that matter will be dismissed. That does happen, because, I mean, we've both been in court where they will announce, and unfortunately the sheriff deputy hasn't been able to find the aggressor, and they've tried serving, they tried at one location, changed it to another, and then after 30 days the court will say, "I'm so sorry, but unfortunately this needs to be dismissed and refiled."
Todd Orston: But that's, this ex parte order, it is a temporary fix that the courts feel is necessary to give the person a level of protection while, and then give the defendant the time in court to give their side of the story, because there are times we'll take somebody to court, and we realize, and we'll have a whole [inaudible 00:21:25] show on this, that there's no merit to the claim, and the court will then dismiss the TPO.
Leh Meriwether: Dismiss the whole thing. Up next we're going to talk about some other things that are typically in those orders to give you extra protection, and we're going to talk about the next steps. So after the person's been served, what happens next, and what should you be aware of walking into court.
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 & Tharp. You're listening to the Meriwether & Tharp 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 prior segments of this show, you can listen at divorceteamradio.com.
Leh Meriwether: Today, we're actually talking about a very, very serious subject, family violence orders. We talked about who can get relief under the family violence protection act, or Family Violence Act, what constitutes an act of family violence, and what relief the court can award. We just finished talking about just the steps of walking through someone's been a victim, they go to the courthouse, they ask for help, they're usually given, if they're available, an advocate that will walk them through. They'll prepare a document that explains what happened, it'll be presented to a judge, a judge, if they agree that it met the standards of family violence, they would issue an ex parte protective order, the sheriff's deputies would serve it upon the respondent, the one who's been accused of family violence.
Leh Meriwether: And keep in mind, this is civil, it's not criminal. It's civil in nature. And that they will get an opportunity to present their side of the story within 30 days. I usually see like two weeks there's a hearing scheduled, but if they don't have a hearing within 30 days, the ex parte order automatically expires.
Todd Orston: You can refile it, so it's not like, "Well, 30 days went by, couldn't get the other party served, and I can't get any help now." Remember, this is a temporary suspension of someone's constitutional right to due process. So the balance is that you have a short window within which to get the party served, get them into court, and give them their day in court. So unfortunately, 30 days, it will be dismissed. But you can bring it back, because there's something called res judicata, that means once it's been adjudicated by the court, you can't bring it up again. But that doesn't count here. In other words-
Leh Meriwether: Right, because it never was adjudicated.
Todd Orston: ... it was never truly adjudicated, so it will be dismissed, but those same facts can be brought back in a petition. So let's say, a month or two later, you find the other party, you can get a good address, you can refile, give that information to the sheriff deputy, get that person served, and then you'll have your day in court. Also, in terms of what happens when you do it, because again, you talked about the immediate protections that you get, the person can be removed from the home, you will get basically your safety and security will be taken care of, because now that person's been removed. And there's an order in place that violation of that order, not only will result in a civil sanction, potentially, but that person is then subject to almost, not almost, to immediate arrest.
Todd Orston: On top of that, there are things that happen if someone, if an order gets entered, their name is going to be put on a registry, and that becomes really important for your safety. Because the reason that registry is important is because police will then have access to that registry, and it's something that they check all the time. So let's say you're involved in an incident, and the police are called, and they are talking to you. You might not even have to mention the fact that you have someone on a protective order, that is not supposed to be having contact with you, they're going to be looking at that and going, "Okay, does this person," meaning you, the victim, "need some help? And is this somehow related to a family violence violation?"
Todd Orston: On top of that, if let's say, you call the police, and from your address, from your phone, you're making a complaint. 911 is going to see that you are the victim of family violence, and the police may respond a little bit faster, because they might be like, "Well, this could be an escalation of violence, or some aggressive behavior between this victim and the other party that is now on the registry." So that's why this really works in terms of giving people a level of protection. Otherwise, it wouldn't be available.
Leh Meriwether: Here's an example of like, so, let's say you had a divorce agreement, and it said that the husband, or dad, won't come within 100 yards of the house, they're going to exchange custody at the police station. Then, he pulls up in front of the house, and then drives off. Well, the only thing you can do in that is file an action for contempt saying he violated the order.
Todd Orston: Because it is a civil, purely civil, matter, and it doesn't allow for any immediate criminal sanction.
Leh Meriwether: Right. But if you have a protective order, a family violence protective order in place, and he pulls up in your driveway, and the order says he can't come within 100 yards of the home, then you would call 911, you say, "I have a protective order in place." I go and tell people just tell them, "My husband is sitting out in the driveway," he's not supposed to be anywhere near your number. Sometimes they even put in the telephone numbers, will be cued in, like if it's a cellphone number, and they will send someone out. If they show up, and he's there, he gets arrested. You don't have to wait to go to court. And then it's aggravated stalking at that point.
Todd Orston: Potentially, meaning a charge for aggravated stalking, which is a felony, can be brought against that person. That's the, you know, you talk about the carrot and the whip, that's the whip. By saying to someone, "If you just hadn't a law that said don't do it," people might be more apt to do it. But if you say, "Don't do it or you might be charged with a felony, and not just go to jail, but you could go to prison." And prosecutors are getting more and more strict about enforcing these types of no contact orders.
Leh Meriwether: Here's the other thing, if you get charged with aggravated stalking, you can actually, the court may not give you bond. Because [crosstalk 00:28:03].
Todd Orston: That's right.
Leh Meriwether: "Hey, I already issued an order saying you can't do it, you've already violated my order once, I'm not letting you out on bond, you're staying in jail."
Todd Orston: Yeah, you're going to stay in jail for a period of time. Even if you get a bond, it could be a high bond. And you may have to wait a little bit of time before the court feels that you've learned your lesson, and you aren't going to violate any additional orders. At that point, it's not just that protective order that's in place, but now there's conditions of bond if you've been arrested for aggravated stalking.
Leh Meriwether: I actually saw, in the daily report yesterday, a former US Attorney, down in South Georgia, was convicted of aggravated stalking, three years in jail, 17 years of probation, and part of a condition of his probation when he gets out, he cannot be anywhere near South Georgia. So they apparently said, "You cannot be within these counties." Those are the counties he grew up at.
Todd Orston: Now, you were talking about somebody pulling up in front of the house. Let me tell you about the incident that we see more often about distance. You're sitting in a restaurant, I mean, I've had numerous clients, because you live in the same town. You're sitting in a restaurant, and all of a sudden, in walks the party that you got the TPO against. All right, is that automatically a violation? No, they didn't know you were there. But, the minute that they see you, they should be turning around and walking out. If they don't do that, it could rise to the level of a violation, because I've heard and seen stories where it's clearly an act of intimidation.
Todd Orston: They will sit at the table, and they're looking over, and okay. Now, granted you need to be protected, get the check, leave, and then do what you need to do in order to enforce that order. But the flip side, I've also had people where they walk into a restaurant, the other party, the aggressor is sitting at a table, they're already eating, and the victim sits down at the table, and then wants to claim that there was a violation. Okay. The advice I give you there is no, you need to turn, and you need to walk out.
Leh Meriwether: Just leave, yeah.
Todd Orston: All right. Because if the court finds out that that's the way it played out, the court is not going to be happy with you.
Leh Meriwether: They're going to think you really didn't fear him or her.
Todd Orston: Right. So you need to turn around, you need to walk away.
Leh Meriwether: I would like to point out that while the examples we've been giving of the men are the aggressors and the one's who are perpetrating the family balance. I've seen a lot of cases where it's not a gender thing, that was just the hypothetical [crosstalk 00:30:28].
Todd Orston: No. You said earlier, this is sort of the traditional example that we're using. But no, I've had many cases where unfortunately it is the girlfriend or wife who's the aggressor.
Leh Meriwether: I even had one where she pulled a knife out of the kitchen drawer and stabbed him in the shoulder.
Todd Orston: I think that would rise to the level of a violent act.
Leh Meriwether: Yes.
Todd Orston: So, all right.
Leh Meriwether: Okay. So the key is here that that's the added level of protection it is put on a criminal registry. It's not saying that they have a criminal charge, it just says there's a family violence protective order between these two parties. That's all. And it goes away after ... so the next step is you go to court. You ask the court to make that a 12-month protective order. When we're going to talk about the other things the court can do after those 12 months. But a 12-month protective order, it goes away after the 30 days if you don't get the 12-month protective order.
Todd Orston: One cautionary statement, because again, this show, unlike the next show that we're going to be doing on this topic, this is more focused on the victim, the alleged victim in this kind of a situation. So I'm saying this to the alleged victims, this is not some magical shield that will protect you from harm. All right, you still have to be careful. If you truly are the victim of a violent act, or violent acts, understand this is just a piece of paper. So just because you get this, and just because your spouse, or boyfriend, or whomever, is removed from the home, it doesn't mean you're just immediately automatically protected. So you still need to take steps to protect yourself-
Leh Meriwether: You need to be vigilant.
Todd Orston: ... to be vigilant, and absolutely because unfortunately, it is only a piece of paper. The good thing is it's a piece of paper that carries a lot of weight, and sanctions that hopefully will stop the potential aggressor from doing anything further that could not just land them in trouble, land them in jail.
Leh Meriwether: Yeah, up next, we're going to get into the actual court appearance, where both sides get to show up, and we're going to talk about how protective orders can play out in divorces as well, and there's actually other options for protection if there's a divorce pending. We'll talk about those options next.
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 & Tharp. You're listening to the Meriwether & Tharp Show. If you want to read more about us, you can always check us out online, atlantadivorceteam.com. Today, we're talking about a very serious subject, we are talking about family violence, and victims of family violence, what they can do to get protection through the court system. We've been walking through the Georgia's Family Violence Act, we're focusing on Georgia. Most states out there, I haven't done a full audit, but most states have their own version of the Family Violence Act, I would imagine it's very similar to Georgia's. But triple-check with a lawyer, go to the courthouse, double-check.
Leh Meriwether: But the process is very, very similar, because these are federal laws as far as your due process rights, that's something in the federal constitution, and Federal Supreme Court cases. So every state's got to follow those due process rights. All right. We've been walking with a victim, we talked about the victim decided to take action, went to the courthouse, got an ex parte family violence protective order, or TPO, they were served on the alleged aggressor. I say alleged because that's either, it's alleged until you get into the courtroom, and present your facts to the court.
Leh Meriwether: Because then, once that person is given their chance to give their side of the story, then the court can [inaudible 00:34:33] order and say, "Yes, there was an action of family violence." That gives rights to give, in Georgia, a 12-month protective order. So they can extend the protections you had in the ex parte up to 12 months. Now, we'll say at the end of those 12 months, if there's been some violations, or there's a concern that the victim is concerned about their safety, you have to file it within a year, because it automatically expires.
Todd Orston: And if you're off by a day, too late.
Leh Meriwether: It's too late. So let's say 10 months in, you've won your protective order, 10 months in you feel like you need this to be extended, you're going to petition the court for an additional three years, or a permanent protective order.
Todd Orston: Yeah. So, if October 30th is the end date, you calculate, it's the end date when the order expires, if you do it before that date, you're golden. You do it after that date, it doesn't matter how, I mean, that person could show up and be standing within 100 yards, or be violating in that way, and there's nothing you can do, because the court's hands are tied. The court can't extend the order. So if you believe there's a reasonable basis to have the order extended, please, please, please, don't procrastinate, do something before the order expires.
Leh Meriwether: We say that, because we've seen this happen a lot. Someone didn't seek to have it extended. So that's the reason I kind of jumped ahead and made that. All right, so we are heading to court. The person's been served, and you show up, how much proof do they need to present to the court to have a 12-month protective order put in place?
Todd Orston: Remember, you were talking about the threshold. What we're really talking about when we use that word is the burden of proof. What is the burden of proof? When you're dealing with crimes, most people that are listening have watched Law and Order, or some other kind of a legal show where it's really dealing with criminal law, and that is the highest burden in the land, beyond a reasonable doubt. It is the highest because people's lives and liberty are on, are hanging in the balance. You have the highest burden.
Todd Orston: This is a more likely than not standard. So, that means that even if it's a he said, she said, the court has the ability to just believe one party over the other. Obviously, you don't want to go in there with no evidence. You don't want to go in there with only a part of the evidence that maybe you could've gone in with, you want to go with the strongest case possible. But the good thing for the victim is that the burden is low. If you go in and you can show the court you're a credible witness, if the story you're telling has merit, is believable, and especially if, let's say, there is physical violence, if there was bruising, have a picture, take a picture of the bruising.
Todd Orston: If there's any kind of an injury, take a picture. If there were witnesses, bring them with you. If there were emails, or texts, before or after you got the protective order from the aggressor, bring those in, print those out, make sure that you're doing this though and that's why you really should be talking to an attorney. But make sure you get the best evidence possible, all right, because when you go in, it is a trial, and we've done shows about what a trial looks like.
Todd Orston: Now, the family violence trial is going to be a little different. Understand, you're not getting two days to try this case. This is a calendar where you will be in there with probably 10, 15, 20, 30 other victims. All of those cases have to be heard on that calendar. So you have a very limited period of time, it could be 15 minutes, 10 minutes-
Leh Meriwether: 30 minutes.
Todd Orston: ... 30 minutes. But a short, short window to get up there, and where we've talked about opening statements, and closing arguments, and all of this, a lot of times you walk in, the court will say, "Okay, put up your first witness."
Leh Meriwether: Right. They've read the pleadings.
Todd Orston: That's right.
Leh Meriwether: And keep in mind. Often, the judge that's hearing this case was the one who granted the ex parte relief.
Todd Orston: That's right. So they know something about the facts, although they've looked at so many petitions, they probably don't remember, but they have now looked at the petition. It's not a complicated petition. Once you've looked at it five, 10 times, you're familiar with it, and these judges have seen thousands. So they know where to look for the allegations, and they're like, "Okay, I think I remember this one. All right, petitioner, go ahead and put up your first witness." So throw your evidence out there, and then the court's going to determine whether you're credible, and whether or not you've met that legal threshold to prove that you require protection.
Leh Meriwether: So, all right, you get to the court, dress appropriately, dress conservatively. This is not the time to make your statement. A political statement, or whatever the statement may be. I used to say like you would wear things you'd wear at church, but people, that's changed. Dress conservatively. At least business casual for men, and for women, dresses, I've seen judges ask witnesses to laeve the courtroom and go change their clothes and come back.
Todd Orston: Yeah, I mean, for women, let me say this. You're not wearing skimpy clothes. You want to wear something, like you said, just on the more conservative side. You're not going to a club, you're not going to a party, you're going to court. Understand that the way you dress, that is a part of the ... the court looks at it like, "Are you showing this court the respect that it is due?" If you come in here dressed inappropriately, you are disrespecting the court, and you're disrespecting the judge. If you say inappropriate things in court, you are disrespecting the court, disrespecting the judge. So the last thing you want, especially if you have a strong case factually-
Leh Meriwether: Don't distract the court.
Todd Orston: ... you don't want to distract the court with things that unfortunately will take the court's attention away from the facts. Now, granted, these judges are trained, and they are experienced, so hopefully that won't happen. But why take that chance? So dress appropriately. Look, I'm not telling you to go out and buy a whole suit, and do all of that. But if you have khakis, or slacks, or something like that, wear it. A belt, dress shoes, if you have a button down, a button down, do something to show the court, because what you're saying is, "Judge, I respect you, I respect this court. I am somebody who respects a lot of things, including the safety and welfare of others." Because I'm assuming you're there to say, "I didn't do this."
Todd Orston: Show the court that you are there, and you're sincerely presenting your side of things, and you take the process seriously.
Leh Meriwether: Yeah. All right. You present your evidence, and it's a very low threshold, 51%. If the court finds that you presented just 1% over the halfway mark, the court is going to grant the 12-months protective order. Now, I will say before we wrap up this show, there's one thing. If there are situations where a family violence protective order can actually hurt the victim, and when I say hurt them, I'm not talking about from a physical standpoint, I'm talking about-
Todd Orston: A negative consequence.
Leh Meriwether: ... negative consequence. So there are times where the wife is completely dependent on the husband for income. The husband, the 12-month protective order is granted, the husband loses his job. Even though the order says he's got to pay the mortgage, and he's got to take care of certain bills, if he doesn't have the money to do it, he can't do it. So sometimes, when we have something like this pending, we will file a divorce, or a separate maintenance action, and what we'll do is we'll do a consent order, it's not a family violence order, so you don't have all those extra protections, but if he was willing to follow the piece of paper that said, "Don't come to the house." That was in the Family Violence Act, odds are he'll follow the one that's in the divorce.
Leh Meriwether: So we make it a consent order in the divorce, where it's like a no contact order, that's enforceable by contempt, but the police aren't going to immediately arrest him. But then that would prevent him from losing his job, or her. But it's usually the man.
Todd Orston: Very quickly. You just have to balance the protection that you are wanting and needing with the other things that you need like support. And law enforcement, remember, you lose your right to carry a firearm, meaning the aggressor does. So, somebody who's in law enforcement, suddenly they can't work because they can't carry a gun anymore. But if you can balance that against your need for protection, if you're getting physically harmed, then you have no choice. You need to get the protection that you need.
Leh Meriwether: I would say you don't need a lawyer to get the original protective order, but it's usually helpful to have a lawyer present at this hearing. Unfortunately, we're out of time. Hey, everyone, thanks so much for listening.