ImportantQuestions and Answers About Divorce and Family Law

Todd Orston:

Welcome everyone to Divorce Team Radio, sponsored by the divorce and family law firm of Meriwether & Tharp. I'm your host, Todd Orston, and here, you're going to 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. Okay, let's get started. So as is often the case, there are people that have questions and hopefully I have some answers. So today, it's going to be another Q&A and we're going to talk about restraining orders, 14-year-old election law, and relocation when it comes to custody. So we're going to go into a bunch of questions that, granted these are answers to specific questions, but they are issues that relate to many, many, many people and their cases.

So hopefully the information we talk about is going to be helpful. So again, let's get started. I have a bunch of questions and so we'll make use the best use of the time possible. All right, so the first question is about a protection order. My protection order restricts my ex from coming within a 1,000 feet of my home, is it a violation if he drives 500 feet away? That sounds like a really bad or easy standardized test question, right? So can't come within a 1,000 feet of my home, what if he's 500 feet away? 500 is less than a 1,000. So very generally and basically stated, I would tell you the answer is yeah, it may very well be a violation, but as is often the case, I need more. So here, I'll read some additional information. It says, "My order of protection specifically states he may not be within a 1,000 feet of my home. He's been driving by on the next street over less than 500 feet away, is it a violation? There are other several other routes he could take."

So again, is this a situation where it's being done purposefully to harass or not? Is he technically within or in violation rather because he is less than a 1,000 feet away from your home? Well, technically yes, but if this is a common road and we're not talking about a road right outside your house, we're talking about 500 or so feet away, then whether a court or law enforcement agency will do something about it, meaning are they going to charge him with a crime for violation of a protective order? That's the question, whether the court will think that it was some purposeful act. And I hear what this person is saying, there are alternate routes, but if this is some common standard road and it doesn't drive right by your house, and when they're driving by the house, you can't even see the car, you would've to maybe exit a neighborhood to see the car. More than likely the court's not going to take issue with it.

And what I would typically tell people is be reasonable, if you are on that street, meaning if your front door can be seen from the road and they are driving by again and again, that could very well be a violation and maybe you do need to contact law enforcement for some help or file the necessary petition or motion with the court to basically have that person held in contempt of the protective order. But if it's not something that is just in your face, if it's not something that they're driving right by your house, maybe even waving as they go by because I've seen that happen, in a neighborhood, someone is driving through the neighborhood, drives by the house, that's different. That's a violation. But if this is some major road thoroughfare that goes through an area and your neighborhood is off of that maybe within a 1,000 feet, but if there's no other evidence that they are trying to violate the terms of the TPO, I would say let it lie. Don't do anything unless something else happens. Something more significant.

Okay, another protective order question, who should I contact when the petitioner tries to get me on their property? Person writes, "The petitioner has a restraining order and has texted me 44 times so far in a short period wanting me to come to the property. Of course, I did not go or respond to the communications. Surely this is criminal. Who should I report the behavior to?" All right, let's break that one down. The petitioner, so based on that, what I'm hearing is that the other party obtained some kind of a protective order. Now, it may just be the ex parte order, meaning they went to court, the defendant, this writer was not present at the time and they were able to convince a court to issue what's called an ex parte protective order. And the way the process works here in Georgia is you can get that ex parte order and then the next step is the defendant will be served and ultimately within 30 days or so, the matter will be put down for a hearing where the defendant can defend himself or herself against the allegations set forth in that ex parte petition.

So okay, they got a protective order, they're trying to convince you to come on over and they're trying really hard. So you don't need to be a rocket scientist to figure out, maybe it's a trap. So absolutely, and there's two components here. I mean, the person is basically saying, "Who can I contact? It must be criminal." So it's not criminal, but you're doing the right thing. So absolutely don't fall into that trap because when you're dealing with a protective order, a family violence protective order, again, talking in the context of here in Georgia, if you violate the terms of a family violence protective order, the consequences are dire. It's not just a matter of you violated it, small slap on the wrist, and a tongue lashing from a judge. It can result in major criminal sanctions, a felony of aggravated stalking. And I can tell you nowadays, prosecutor's offices are taking, and it's been this way for a while now, they're taking a hard stance on violators of protective orders.

So if this person is trying to convince you, come on over, do not respond. If someone took out a protective order against you and they reach out, I don't care how nice they sound, I don't care how agreeable they appear, it doesn't matter if they are waving the white flag, doves are flying. I mean, it's just everything is peace and love and harmony until that protective order goes away, don't do it. Do not violate the terms because here, like I said, the sanctions are really, really significant. And so here, this person is clearly doing the right thing in terms of calling the police or that's not necessary. But if the person pushes this all the way to a hearing, if it doesn't get dismissed, is that something you should bring up to the court? Absolutely. A protective order, keep in mind what the petitioner is saying in filing this protective order is an act of violence, stalking or harassment has occurred and the behavior is so egregious that I fear for my safety now and in the future.

And I'm asking the court for a level of protection to protect me from any future bad behavior. If this person is so scared, why are they reaching out 44 times? Why do they keep reaching out? And so the argument becomes in front of a judge, judge, here are the allegations. I disagree with those allegations. And by the way, this statement of fear and concern, here are my phone records. Here's text messages that I never responded to where this person kept reaching out trying to talk to me. If they were so scared and needed protection, well, why were they doing that? All right, so we've been talking about protective orders. I have a few more questions, it's a common issue, few more questions about this. But when we come back, we'll dive into those and then we're going to dive into some custody issues, including relocation and the 14-year-old election when a child actually has a right to use their voice to try and influence what parenting time will look like in a case. We'll be right back.

Speaker 2:

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?

Speaker 2:

That's right.

Todd Orston:

You can turn on the show and we'll help you fall asleep.

Speaker 2:

There you go.

Todd Orston:

I'll talk very soft. Welcome back everyone to Divorce Team Radio, a show sponsored by the divorce and family law firm of Meriwether & Tharp. I'm your host, Todd Orston, and if you want to read more about us, you can always check us out online at atlantadivorceteam.com. And if you want to read a transcript of this or other shows or go back and listen to this show or other shows, again, you can find them at divorceteamradio.com. So today is another Q&A day. And when we broke, basically we're talking about restraining orders, family violence restraining orders. Unfortunately, they're filed too often and I don't mean too often that the petitioners seeking help are doing it improperly or wrongfully. I'm saying unfortunately, there's just too much stuff out there where people feel the need to look to a court for protection. And that requires of course, these cases to be filed and sometimes hearings to be had. So these are questions relating to protective orders. And so I want to keep going and we have a few more questions or one or two more questions relating to protective orders that I think are really important.

They really go to the heart of the process, and again, whether or not your facts are similar, the same, or not even close to some of the things that are stated in the questions, the information about the process and about this as a legal tool is incredibly important and useful. Okay. So the last question had to do with somebody trying to potentially trick them into violating terms of an ex parte order. Don't do it, do not, don't fall for it. I'm not going to fall for that banana in the tailpipe trick, anyway, that's an old reference, but don't do it. So the next question about restraining order is this, how can I file for harassment in Georgia if the domestic violence it says place in his town says it doesn't qualify? So I have a harassment report, police have told me to go file for a TPO. All right, and domestic violence in my city was going to file, but the law says I have to go to his city to file, his city said it doesn't qualify.

He literally has to put his hands on me. He keeps texting and calling and I've warned for him to stop or I'll file for harassment. I need to know what other way I can go by getting a TPO. Well, if the people you were talking to at the city, I know you said you talked to the city, all right, so I'm assuming it's not all the people in the city, but if the person or people you talked to said, "No, the person has to put their hands on you," that is wrong. And if that person's listening, feel free to call me. I will happily debate this issue with you. Oftentimes it is even called a 12-month stalking restraining order, stalking order. So basically, it can be physical violence, it can be harassment, it can be stalking. And so no, that is not accurate at all in terms of no, there has to be physical violence.

The whole point of this is hey, there is behavior, either it's violent behavior or it's behavior that maybe could lead to something violent happening and therefore we're going to put something in place to prevent that future bad behavior from occurring. And now, it really depends. I don't know what county, I don't know where you went to try and file this. If you went to a police department and they said, "Nope, there has to be family violence, there has to be a violent act," you shouldn't be going to the police or the sheriff, you need to find and contact, I would start depending on the county you're in, but there are some bigger counties where they have a dedicated office related to the filing of family violence protective orders. But I would start with the clerk of superior court in the county in which you or the defendant in that case resides, contact the clerk and they will tell you where in that building you go to fill out an ex parte petition for a protective order, that does not involve the police.

You don't even need to come with documents, police reports, things of that nature. So you go in, you basically will fill out that petition. I mean, this is the general process. And then once that petition is properly filled out, you will make your way in front of a judge and you'll explain those things. The judge will review the petition for that TPO. And if you meet the criteria, the court will issue that ex parte order and then that goes to the sheriff. The sheriff then serves it on the defendant and whatever the terms of that ex parte order are like, in other words, get out of the house, the sheriff will help to effectuate that. If it's against your husband, sir, get out. You need to leave, grab your toothbrush, grab a couple of articles of clothing and you need to leave. And then within that 30-day period, there'll be the hearing where the defendant can defend themselves and you have the obligation, if you're the petitioner, to prove that the allegations you stated are true and correct and that you are deserving of this court protection.

All right. So yeah, don't just accept if somebody is telling you, no, you can't. You know what? More than likely, you can. So you need to ask the right people. It's not just asking someone, ask the right people, and the clerk of superior court is going to be a great place to start. All right, so we've been talking about these things. We've been talking about protective orders. Now, let's change things up a little bit, and let's talk about, here's a property issue. How do I get my husband to give me back almost a $100,000 in cryptocurrency he took from my account and more problems? The person wrote, "My husband took almost a $100,000 from my personal crypto account. He has the passwords, he said he took it to add the money he has so that we could buy another property. He's decided that he doesn't want to give me back my money because he says I invested in a coin that he started. So therefore he feels it's his money.

Now, I recently served him with divorce papers and since I've recently discovered the engagement ring he gave me as a fake after he told me for years he spent thousands and it's made in Italy, the best country in the world that was in quote, not sure how to get my cryptocurrency back. He says he's going to keep it until he figures out how our assets will be divided. Can I file a police report?" And well, the person goes on, says a couple of other things, but let's leave it there and let me jump in. Cryptocurrency is dangerous, people. If there is any concern whatsoever that your relationship could be souring and if you believe that the other side may have information, passwords, whatever, access to cryptocurrency, then you need to take some immediate steps to protect it. Because the problem with those types of assets is that sometimes you can track and trace and show where it is and where it's gone and all of that, but sometimes you can't, and once it's gone, it's gone.

So it's similar. I guess the analogy would be when people say, "Oh, I have a $100,000 in a safe in my closet." Dangerous. How do you prove that you had it? That's the struggle attorneys will have. If you say that you have a cryptocurrency account and a $100,000 left, you better have documentation that shows that it was in the account, that it was removed from the account, it shows the value of what was removed from the account and then you better be able to show that the other party is truly the one that took it out because maybe they'll admit it and maybe they won't. Maybe they'll say, "I have no idea what happened, it's not my account." So the best advice is make sure you protect that kind of an asset.

But the secondary thing is file for divorce, if you haven't already immediately, then there's a standing order that's in place that is supposed to help prevent the spoliation of assets. Basically says don't do anything dumb with that asset. And then you can look to the court for immediate help to secure the asset before it disappears and is gone forever. All right, when we come back, we're going to jump into a few more questions and basically I want to go back, there's one more about family violence I want to touch on and it's about dropping it once it's filed. We'll be right back.

Speaker 2:

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Todd Orston:

Welcome back everyone, I'm Todd. This is Divorce Team Radio, the show sponsored by the divorce and family law firm of Meriwether & Tharp. If you want to read more about us, you can check us out online at atlantadivorceteam.com. And if you want to read transcripts or listen to shows, again, go to divorceteamradio.com. Today, it's a Q&A day. We're talking about a number of issues started with family violence. I dipped into property. I'm going to go back for a moment to restraining orders because I see this question come in, and basically, it's something that doesn't come up all the time, but it's important and it's this, can I as the victim drop aggravated stalking charges against an ex if he's violated a temporary protective order?

So that's a big question right there. Person goes on to write, "My ex-boyfriend started stalking me and I got a TPO, he violated it and I basically pursued that and he was charged with aggravated stalking. I'd really like to see and get him help, but I don't want to see him go to jail. Can I drop the charges? He also has a criminal trespassing charge." So here's the problem. The problem is crimes, even though there is a victim, it is a crime against the state, and therefore, you need to think of it in those terms. Therefore, when you look at a case, you will always see the state versus the defendant. It's not the victim versus the defendant, it's the state versus the defendant. So the problem is even though you are the victim, you are the aggrieved party. You are the one that needed the help. And the problem is by violating the terms of the order, he committed a crime against the state and therefore it is 150% up to the prosecutor to decide whether or not to pursue or dismiss the charge.

And I can tell you right now, that really just depends on the prosecutor, it depends on the facts, it depends on a number of things, but prosecutors are, and I can't even say wrongfully, they are correctly taking these types of violations of protective orders very seriously nowadays. And by nowadays, I mean, 20 years ago or so, I was a prosecutor, and we took it seriously back then. But there is a bigger push to basically prosecute these types of things where back in the day maybe there was a little bit more of a willingness as a prosecutor, if a victim said, "Listen, I think he or she learned a lesson, I don't want them to be charged with this felony," and maybe the case would go away. Nowadays, it's much harder. So once it's out there, once they're charged, you can make your opinion known to the court. But there is no guarantee that... When I say the court, I mean the prosecutor, there's no guarantee that the prosecutor is just going to dismiss.

Then they may take your recommendation, present it to the court, or even dismiss it on their own. Or they might say, "Listen, I appreciate what you're doing, but this person violated a court order and this is one of the consequences of it and we're going to move forward with the prosecution. Maybe we'll ask for leniency in sentencing, but we're moving forward with prosecution." So unfortunately in that situation, all you can do is be that squeaky wheel with the prosecutor, contact them and basically make your feelings known in terms of your lack of any desire to move forward with criminal prosecution. And maybe that will resonate with the prosecutor and the charges will be dropped. All right, so let's talk about 14-year-old election. Now, what is that? 14-year-old election in Georgia, there's a law that says, starting at age 11 and it's called the 14-year-old election, but really starting at age 11, the opinion of a child is going to be taken into consideration when it relates to parenting time.

So while a child can't say, I don't ever want to see, under that election law, I don't ever want to see the parent again, meaning in terms of visitation, they can decide or their opinion can be made known to the court and considered in terms of just primary custody, who do they want to primarily live with? The other party, unless there's other factors, will still have the right to have some parenting time. So, that child can't just say, "Well, I'm done, they made me clean my room and I don't ever want to see them again." The court's not going to do that. So this is a question about that. So what age can my daughter decide on which parent to live with in Georgia? The father has custodial rights, but our daughters lived with the mother for the last four years, what rights does a divorced spouse have? Basically that goes to the issue that I was just talking about, the opinion of the child.

There are custody issues here and then there's the election issues. If this is a child that's been living with mom, has attained 11 or is at this point 14 or even I think older than that, then the child's opinion is going to be heard and considered. And if the dad says, "I have custody even though you've been living with mom for four years, I have primary custody." Yeah, well, the child is going to say, "I hear you, but I want to live over here." And if mom moves forward with a modification, I have no doubt absent other circumstances that would call into question the stability of that parent that the court would say, "Okay, well, this is a 14 plus year old child who is electing to stay with mom where she has lived for four years. Yeah, we're going to allow that to continue."

So the 14-year-old election, the misunderstanding is that it starts absolutely at 14, it actually starts at 11, and as the child gets older, their opinion has more weight. Another misunderstanding is that just because a child elects does not mean that the court is bound by that opinion. It used to be almost a foregone conclusion that if a child elected, the court was going to honor that election, but the court still has the right to determine what is in that child's best interest. So a child might say, "I'm 14, I want to live over there." But if the court jumps in and says, "Well, except for the fact that you want to go over there because with this parent that you're with, unfortunately they have some rules. You can't just go out and party all night." You're 14 years old and by the way, maybe they have a substance abuse issue or there are some other behavioral issues with that parent, so you really just want to go over there because you think your life is going to be crazy fun. Well then the court could say, "Yeah, that's not in your best interest."

So the court can reject the child's opinion, but basically speaking that is how the election law works. All right, so that's one of those things also, if you are looking at either an initial divorce action or if you're looking at a modification, that's an area of law where even today there's a lot of discussion over whether or not it is appropriate even to give a child the ability to have that opinion and offer that opinion. And there are even questions as to the right or wrong of an attorney actually talking to a child and having them basically sign off on an election. It is an area where I can tell you right now, if that's an issue you think is going to come up in your case, please, please, please contact an attorney.

There are some areas where I'm like, "Hey, you know what? You can wing it, you can do it on your own, whatever, or things, they're just not going to be that complex." The rules relating to child election, it can get a little bit hairy. So definitely contact an attorney. When we come back, I want to go into another relocation like custody issue, but a relocation issue that is kind of also an election issue. The question is my 16, 14-year-old want to live with me. Their mom recently moved 250 miles away and we both live in Georgia. All right, and when we come back, I'm going to read the question and give you some information and an answer. Be right back.

Speaker 2:

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?

Speaker 2:

That's right.

Todd Orston:

You can turn on the show and we'll help you fall asleep.

Speaker 2:

There you go.

Todd Orston:

I'll talk very softly. Welcome back everyone. I'm Todd. And this is Divorce Team Radio sponsored by Meriwether & Tharp. So today, it's a Q&A day and basically I'm giving information, I'm answering questions, and we started off with restraining orders. We have dipped into some custody issues and one property issue. So when we went to break, the question is one related to a 16, 14-year-old who want to elect, it seems like they're probably with their mother, primarily the mom moved 250 miles away and maybe want now to change their primary residence to that of their father. So the question is this, "My kids keep telling me they're miserable. They say that the mom makes them babysit all the time. Their grades have gone from honor roll to failing. I want my kids to be happy. We've been divorced for 10 or 11 years and we get along, but she told them they're not leaving and got angry with them when they brought it up. My children are miserable and I need to know what I can do to help them stay with me.

I'm a great father and my ex has even acknowledged that, but she gets nasty when they talk about it." What we're talking about here is a modification, a modification of custody and parenting time, which may also of course bring up that component of changing child support. If the children live primarily with the other parent and that parent had an obligation to pay child support, that would've to be changed as well. But we are talking about here a 14 and 16-year-old, which brings into play the ability of those children to in essence execute elections to express formally their opinion that custody should be primarily with the other parent. But there's more here, because even if this wasn't an election case, it sounds like there are a number of issues that could call into question whether or not mom and her home are the best place for the kids to live primarily. I mean, when I start hearing about kids who were honor roll, and now, they are starting to fail, that their grades are suffering, that they're constantly complaining that they are unhappy, now all of a sudden, their stability is in question.

There are plenty of situations where it's a relocation case, but the kids were straight A's and they're still straight A's. Clearly, they may want to go to the other parent's home, but they're not suffering, they're not failing. And by that, I'm not just talking about school, but emotionally, psychologically, I mean, but here we have something where that you have these two children, both of whom are over 14, who are saying living with mom is tough and there are specific reasons why they think it's tough and there's evidence to show that whatever they're going through, even if this is just the opinion of children who are maybe unreasonably critical, well, the problem is the reality is that things aren't going well for them, they're not doing well. And if the grades are failing and other things are not going well, it may open the door election or no, it may open the door to a modification because it would potentially be in their best interest to change custody and go into an environment where they're happier and can thrive.

So in this situation, absolutely I would be talking to an attorney about the election component and then start talking about basically how the relocation, and I haven't even touched on that. The fact that this person moved 250 miles away, that's pretty significant. 50 miles, it can be significant, absolutely, 250, that is absolutely going to impact the non-primary custodial parents' relationship with the kids' ability to be involved in all aspects of the children's lives. So if this person was sitting across from me, I'd be looking at them going, "Yeah, there's a lot here." There are a lot of things that don't seem to be working or things that have changed that I believe would open the door to a real possibility to fight for a change of custody. We'd have to flesh those things out. But the one that seals the deal is that you have two kids who are asking for this and who are not doing very well. So I think that that person has a very decent argument in terms of modification.

All right, let's talk now, here's a question that really is about that relocation issue and the question is, can a mother move out of state with a child without telling the other parent? They go on to say, "My ex-wife and I have joint custody of our son. I was made aware recently that she has fled to Florida as of two weeks ago. She's refusing to let me see or talk to our child, hasn't told me that she moved, only found out that she left the state through Life360 on the child's phone. We have a child support agreement order set in place. I've been paying child support since the order was set in place, and if I file for emergency custody in Georgia, can I legally go down to Florida and get my child? I'm scared for his safety and wellbeing considering she fled from an abusive relationship and environment. I've tried calling, texting." Okay, I mean, the person goes on. But here's the thing. The initial question is, can the mother move out of state without telling the other parent?

The quick answer is yes. Now, what do I mean by that? I'm going to quickly clarify. It happened. That's not the real question. Can it happen? Yes, it can, should it? Or more specifically, does the mother leaving the state without telling the other parent in some way violate the terms of an existing parenting plan or order? That's the real question. Most custody orders have some provision that relates to notice requirement, that there is a requirement that prior to leaving the jurisdiction, you put the other party on notice before relocating. And the real premise there is you want to give 30 or oftentimes 60 days notice because the court is basically saying give the other party the ability to deal with the issue legally speaking, don't just up and leave, have a conversation about it, put them on notice. If they agree, fantastic, but if they don't, they can take steps before you leave to hopefully deal with the issue and prevent any harm to themselves or more importantly to the child.

So can a mom do it? Well, she did. So now, what can you do about it? That's the real question. And what I didn't read was a whole bunch of stuff about the instability of the mom. And so here, you have a situation where she probably violated the terms of the existing parenting plan order by leaving without giving notice. And so that's number one. Then number two, she's interfering with him having any contact, that's wrong. And what you should be doing in the meantime is all of those ways of contacting, texting, emailing, phone calls, don't harass. Doesn't mean you should call, text, email a 100 times a day, but while you are looking for some help, legal help to formally deal with the issue, you need to be able to show the court, listen, they left. I tried, I texted, I said, "Hey, can we just make arrangements? Can you just give me an update? Is my child okay? Are you okay? Can we just figure out a time? If you're out of town, I just heard you are, maybe we can do some video conferencing or something."

I think that's going to resonate with a judge later on because it shows you made some efforts and the other party actively interfered with your ability to exercise your court ordered parenting time. So here, absolutely, I think there's an opening for a change of custody, another modification opportunity. I'm not saying it's guaranteed, but if this person is so unstable, is fleeing an abusive relationship and is just in the wind with the child, maybe they're not the stable choice to be a primary parent. All right, hopefully, these answers helped you. If you have questions, please email us, let us know. Send any questions you have to atlantadivorceteam.com and I will try to get them into a future show so that hopefully I can give you some specific help. Thank you so much for listening.