Understanding Family Violence Protective Orders 

Speaker 1 (00:07):

Welcome everyone to Divorce Team Radio, sponsored by the divorce and family law firm of Merriweather and Tharp. I'm your host, Todd Orton, 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, check us out online@atlantadivorceteam.com. Alright, let's get started. Today I want to talk about a serious topic. We see it quite often in terms of family law and it's protective orders. And here in Georgia we're going to be talking about something. It's a very specific type of protective order and it's a protective order under what is called the Family Violence Act. And so today's show, I want to go into detail, talk about the law, talk about anything and everything you need to know if you need to go file for a protective order under the Family Violence Act or if one has been filed against you.

(01:22):

So again, let's go back to my initial comment that unfortunately this happens and I wish it didn't, but because these types of things happen between people, there is the ability to obtain a protective order. In Georgia, we have a code section that deals with this type of protective order and this type of violence. So you're going to hear me say things like OCGA, that's official code of Georgia annotated. That's in essence the law. And so OCGA, title 19, chapter 13, article one, and really what you need to know is pretty much one through four. So that's what I'm going to focus on. And so 19 dash three dash one, let's start there. So 19 dash 13 dash one, family violence defined.

(02:38):

So like I was saying, it's not just about violence, it's a type of violence, but it's more importantly it's violence really between certain people that fall into this category. So 19 dash 13 dash one, family violence, it is defined as the occurrence of one or more of the following acts between, and this is where it gets important past or present spouses, persons who are parents of the same child, parents and children, stepparents and stepchildren, foster parents and foster children or other persons living or formally living in the same household. So fairly broad but not completely broad. There are limitations. There are people who do periodically try to file under the Family Violence Act, but because that familial relationship doesn't exist, it gets kicked out.

(03:59):

So you absolutely need to determine first and foremost, does it apply to me? So then the secondary part of 19 13, 1 is again, it says it's an act, the occurrence of one or more of the following acts, number one, any felony. And again, felony, we're talking about criminal law. Now, criminal criminal acts that fall under the criminal code felony is as opposed to a misdemeanor. Misdemeanor is an act, a criminal act that carries with it a potential time of confinement up to 12 months felonies. That's the bigger stuff. Those are the acts, those are the crimes that can carry with them. Possible terms of confinement that exceed one year, could be one year, could be life.

(05:15):

So it's any felony or to the commission of offenses of battery, simple battery, simple assault, assault, stalking, criminal damage to property, unlawful restraint or criminal trespass. So as you can see, you have to think in terms of how does the law read. You can't just file for a protective order under this code section simply because you have to be able to show, and we're going to go into this in more detail that A, there's a relationship, and B, there was the occurrence of one or more acts that were either a felony or the commission of an offense. Those offenses that I read, those are really misdemeanors and the code section 19 dash 13 dash one goes on to say the term family violence shall not be deemed to include reasonable discipline administered by a parent to a child in the form of corporal punishment, restraint or detention. So while you my message to the parents there, that doesn't mean you can go full MMA on your kid, okay?

(06:46):

There is a reasonableness factor, but basically this is saying you can reasonably discipline your child and to the kids, I'm saying obviously you should not be abused, but a smack on the bottom because you took a cookie from the jar doesn't mean you can file for family violence protection. So jokes aside, as you can see, very specific requirements and if it doesn't fall within the definition of this law, then unfortunately as much as you might need want this protection. All this means is you can't get it under this code section. So what I'm going to do now, I mean I'm going to finish talking about this, but then as we continue in the show, we're going to dig deeper.

(07:56):

I want to talk about jurisdiction. That's 19 dash 13 dash two. So where do you file? That's pretty important file in the wrong place. It's the wrong place. You're not going to get the help that you're asking for. That's what jurisdiction means. Then 19 dash 13 dash three, I want to dig deeply. That code section is going to talk about the petition that you file. It's going to talk about the granting of ex parte relief. It's kind of unique. There aren't many times where you can obtain ex parte relief. I'm not saying it never happens, but it's not common. We'll talk about the hearing, we'll talk about dismissal of a petition if certain things don't happen. You may have filed a petition, but you're not going to get the relief you need.

(09:04):

So that's 19 13 3 and then 19 13 4, basically we're going to talk about the protective orders. What goes into it? Basically what happens once you get it from the court and steps that you can take to enforce it. So there's a lot that goes into these. It takes a decent amount to get it in the first place, but once you apply for it, and if all the boxes are checked, then if there is a basis for it, you will get a protective order and it will give you a level of protection that normal protective orders don't really provide protection under the Family Violence Act. It's got teeth, really significant teeth. And I'm going to say this several times during the show. And if you are someone against whom a protective order has been filed, if you are thinking about violating the terms of that protective order making contact in violation of that protective order, do not do it. Don't do it because it's wrong, but also don't do it because the consequences can be really dire. So when we come back, we're going to keep talking about this, we're going to jump into the next code section and deal with the jurisdiction. Where do you file it? We'll be right back.

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I just wanted to let you know that if you ever want 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

Speaker 1 (11:08):

Well. Better than counting sheep, I guess, right? That's right. You can turn on the show and we'll help you fall asleep.

Speaker 2 (11:16):

There you go. I'll

Speaker 1 (11:16):

Talk very softly.

(11:22):

Welcome back everyone to Divorce Team Radio. I'm Todd Worton, partner at the law firm of Merriweather and Tharp. And if you want to read more about us, you can check us out online@atlantadivorceteam.com. And if you want to read a transcript of this or other shows, go back and listen to them again. Find them@divorceteamradio.com. So today I'm talking about family violence, protective orders and there's more to it than just protective order. You can get different types of protective orders under the law of Georgia, but in Georgia, and I'm not saying other jurisdictions, other states don't have similar laws, but I'm speaking only about Georgia right now. Here we have a code section 19 dash 13 and chapters one through four relate to the filing of family violence, protective orders, very specific if you have a certain relationship with the person and if a certain act has occurred you can apply for and get protection under that code section.

(12:36):

And as I was saying when we went into the break, it carries teeth, very significant teeth. So now I want to talk about 19 13 2. And by the way, it's super easy to find this information. If you want to read, you can go to Merriweather and Tharp, we have certain information on our website. You can go online, just type in OCGA 19 dash 13 dash one, it'll pull it up and you can read the law yourself, but 19 dash 13 dash two jurisdiction of the Superior Court. So first and foremost, you need to know what court do I file in here in Georgia, the superior court, we have magistrate courts, we have state courts, we have superior courts, we have juvenile court, court of appeals, supreme court. I'm not even getting into the federal courts in terms of state courts. It is the superior court in which you are going to file your petition and it becomes fairly easy, meaning all you have to do is go into a courthouse, a superior court courthouse, and the first deputy you see if you're filing, I mean you ask, Hey, I'm here to file for a family violence protective order.

(14:11):

Where do I go? They're going to point you in the right direction. Some courthouses, they actually have help desks, you can go up to the help desk, they'll point you in the right direction. But in terms of the building superior court, so now you know that the jurisdiction is within or is in the superior court, but what about the county? Where are you supposed to file?

(14:44):

Yeah, yeah, yeah, I know I get it. Superior court. But guess what? Fulton has its own superior court, Gwinnett, Dick Cab Henry, I could take up half the show naming all the counties here in Georgia, but the point is every county has its own superior court. So where do you file? Well, lucky for us, 19 dash 13 dash two of the official code of Georgia annotated deals with this. So a reads this way except for proceedings involving a non-resident respondent, the superior court of the county where the respondent resides shall have jurisdiction overall proceedings under this article. What does that mean? Well, if you are filing, you're the petitioner.

(15:44):

So basically what it's saying is you need to look to the county where the respondent lives. That's where jurisdiction is going to be. And B says for proceedings under the article involving a non-resident respondent, the superior court where the petitioner resides or the superior court where an act involving family violence allegedly occurred shall have jurisdiction where the act involving family violence meets the elements for personal jurisdiction provided under other code sections of a different code section. But the bottom line is if they're out of state, let's say, it doesn't mean you have to go to that other state. You can still file in Georgia and because they're a non-resident, look to your county. Or if it happened in another county, the person lives in North Carolina, do you have to go to North Carolina to file? No, if you live in Fulton, but the act happened in Cobb, you can file in Fulton, but you can also file in Cobb if that's where the family violence act occurred.

(17:12):

So there are choices, but jurisdiction's really important if you do it wrong, meaning if you don't consider jurisdiction and if you file in the wrong place, you will not get protection. You filed it in the wrong place. You're not going to have a judge go, well it's the wrong place, but you know what, I want to protect you. The court will have no choice but to say I'm sorry, we can't help you. You need to go to the correct county, the correct jurisdiction and file there. If you're doing this on your own, I beg you, if you are looking for and seeking help protection, then you need to make sure you educate yourself and file in the right place. If you hire an attorney to help you, they're going to help you. They will make sure you file in the correct place. If you need protection, it's a great tool, but if you do the wrong things in terms of filing, then it doesn't matter how good a tool it is if you can't use the tool.

(18:38):

So jurisdiction, very important. Now before I jump into the actual filing of the petition, I'm going to save that for the next segment because there's a lot there. So I will caution you and say this, if you are filing and if this is coming at the beginning of or right before you file for let's say divorce, be careful. I'm not trying to convince anyone to not seek protection if they need it, but very generally speaking, and I'm going to go into a little bit more in the next segment, the burden here is very low. So unfortunately, and judges are well-trained to see this, but nonetheless, unfortunately there are people who know they're going into a divorce and they will try and use this as a tool to gain some kind of advantage.

(19:52):

If they get the protective order, they can use the allegations against the other party in the divorce, a protective order when you file for it. And if it is granted at the ex parte level or beyond that when there is a formal hearing and both parties are present, if the protective order is granted, you can seek certain things like use and possession of a home, IE, the other party has to move out, cannot go back to the house. But be very careful if you are doing this improperly meaning for an improper reason. If protection isn't really required, if you don't have good evidence to show something happened that warrants this level of protection, it can go both ways. Meaning if you need the protection, it's there for you.

(20:50):

But if you try to file and there really weren't valid grounds and it looks like maybe you're doing it for an improper purpose that can be used against you in the divorce. So a great tool and I'm going to go into exactly how it works in a moment, but it's a great tool when used appropriately and the judges, many of these judges, this is what they do all day long and so they hear hearing, after hearing after hearing and they are attuned to the real pleas for help. Which ones are real, which ones maybe aren't. When we come back, let's talk about 19 dash 13 dash three, the filing of the petition, the ex parte relief, all of these are the meaty parts of this code section. We're going to go into all of it right when we come back. Hey everyone, you're listening to our podcast, but you have alternatives, you have choices. You can listen to us live also at 1:00 AM on Monday morning on WSB. If

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Speaker 1 (22:23):

Welcome back everyone to Divorce Team Radio, a show sponsored by the law firm of Meriwether and Park. I'm your host Todd Worton and if you want to read more about us, check us out online@atlantadivorceteam.com. And if you want to read transcripts, listen to shows, go to divorce team radio.com. I also wanted to let you know if you want to listen to the show live, you can listen at 1:00 AM Monday mornings on WSB. Alright, so we're talking about family violence, protective orders and I have to say all of those words because it's a unique tool with unique protection. And so a protective order is a protective order. A family violence act, protective order offers a much bigger level of protection.

(23:20):

That's what we're talking about. We talked about we basically the definition we talked about jurisdiction, where do you file? So now let's talk about 19 dash 13 dash three code section in the official code of Georgia annotated OCGA. It reads that the filing of a petition seeking relief from family violence, this is what it's about. So the title is that. And then granting of temporary relief parte the hearing and dismissal of a petition upon failure to hold the hearing. And it also offers some procedural advice for victims. So let's start with just the basic, the beginning of it, the 19 dash 13 dash three that talks about these things. A person who's not a minor may seek relief under this article by filing a petition with a superior court alleging one or more acts of family violence. So remember a person who is not a minor, it also goes on to say a person who is not a minor may also seek relief on behalf of a minor by filing such a petition.

(24:46):

So what does that mean? Let's assume, and I'm going to assume a husband wife, okay? And I've already told you and read from the code section, that's not the only familial relationship that applies here. I'm just going to use that for purposes of examples. Let's assume a wife is seeking protection. The wife who is not a minor can seek relief for herself. The wife can also seek relief on behalf of let's say they have minor children. You need to be very specific because if you believe that the violence could expand and affect the kids, you need to seek protection for them too. There are people who think that that's the case, meaning they think kids need to be protected, they file on their behalf, meaning they file to seek protection for themselves, assuming that the court will just include the kids and that's not automatic.

(26:05):

And even if they walk away with a protective order, it is a protective order for themselves. It is not a protective order for the children. So you have to be very specific. So that's A. Now B says upon the filing of a verified petition, basically you're notarizing this. You can't just say, yeah, it happened. This is a formal statement. You are stating that these things happened and you have to allege. And here it's important. You can't just say I'm scared. It reads with specific facts that probable cause exists to establish that family violence has occurred in the past and may occur in the future. And it goes on to say in the court may order such temporary relief parte as it deems necessary to protect the petitioner or a minor of the household from violence.

(27:16):

So what does parte mean? In essence, it means outside the presence of the other party. And when I was saying earlier that it's unique, you hear people talk about legal rights, I have a right to be heard. I have a right to my day in court and you do. And typically when hearings occur, both parties need to be present but under very specific, very limited situations, parties can look to the court and receive ex parte help, meaning the petitioner goes to court, the defendant isn't there to defend themselves, presents information. And if the court believes what was stated that under this code section the court can issue a temporary parte order saying, Hey, there's probable cause to believe there was violence and it could occur in the future and therefore this order is now in place and you respondent need to abide by these terms by this order. What happens next is then within a very specific period of time, 30 days it'll be put on a calendar for a hearing. That's where the respondent will have an opportunity to defend himself or herself. So that's what that means.

(28:49):

But you have to be very specific when you are filling out the petition. You can't say He hurt me, you need to say he did X, she did Y. The court's not looking for a book, but you need to have some level of specificity. When did it happen? Was it a kick, a punch, a this or that, whatever. Go into a little bit of detail so that the court can say that you have provided the evidence necessary to show probable cause that it occurred and could occur in the future. If you don't do that, you may be truly scared, but if your petition doesn't read that way, if it doesn't include specific language to show probable cause, you're not going to get protected.

(29:51):

People do this all the time. They file for an ex parte order, they stand in front of a judge, they don't have a lot of good information, they don't provide the evidence necessary. And guess what? The request for a protective order is denied. C then says within 10 days of the filing of the petition under the article or as soon as practical thereafter. But in no case later than 30 days after the filing of the petition, a hearing shall be held at which the petitioner must prove the allegations of the petition by a preponderance of the evidence. As in other civil cases. Remember this is civil, it's not criminal. The other party's not being charged with a crime. You could file for go to the police and file criminal charges, but that's not what this is. It goes on to say in the event a hearing can't be scheduled within the county where the case is pending within the 30 day period, the same shall be scheduled and heard within any other county of that circuit. If a hearing isn't held within 30 days, the petition shall stand dismissed unless the parties otherwise agree. So you had evidence you filed, but if you don't know where the other party is, the court's going to give you that 30 days to try and locate them to work with the sheriff to get them served. And if that fails, it's going to be dismissed and you do not have any protection.

(31:33):

And the real protection only occurs once the respondent is served. Yeah, you got the order. But in order for the other party to be bound by those terms, you have to find them and get them served. So you have to think about these things if you file but you haven't seen the other party in three months and have no idea where they are. I'm not saying don't file, but remember the true protection comes once they are served. Do your best to try and find them to try and communicate that information to the sheriff's office that is perfecting service. Alright, when we come back, I want to finish talking about this code section. It goes on and we're going to talk about that and we're also going to talk about the protective orders and consent agreements that basically come out of these types of hearings. We'll be right back. I just wanted to let you know that if

Speaker 2 (32:38):

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.

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Better than Counting Sheep, I guess, right? That's right. You can turn on the show and we'll help you fall asleep.

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There you go. I'll talk

Speaker 1 (32:55):

Very softly.

(33:01):

Welcome back everyone. I'm Todd. This is Divorce Team Radio, a show sponsored by the Divorce and Family Law firm of Meriwether and Tharp. If you want to read more about us, check us out online@atlantadivorceteam.com. Want to read transcripts, listen to shows, find them@divorceteamradio.com. So we're talking about temporary protective orders, or pardon me, protective orders under the Family Violence Act here in Georgia. Very unique tools and carries a lot of teeth in terms of if you get this order, you have to understand that it's not just an order of a court. I could sit here and say, Hey, if a judge tells you to do something, do it. But it goes beyond that because it's not just that you could land yourself back in front of the judge on a contempt, you have to understand that in addition to that, you can be charged with an additional felony for violation of a protective order filed under the Family Violence Act.

(34:16):

I want you to hear that. I want you to understand that it can actually circumvent the court. Meaning yes, the court could hold you in contempt, sanction you in some way, but that's not the big concern. The big concern is that if you violate the terms, make contact when you're not supposed to have a third party contact in violation, do something that violates the terms. The local prosecutor can get their hands on that case and file a criminal charge against you. The crime is called aggravated stalking. It is a felony. That's why this is such a valuable tool because it's not just a court saying don't do it, it is a court saying don't do it. And you've been warned because if you do violate these terms, then hey, you asked for it, you'll be sanctioned by this court. But you also better find yourself a good criminal defense attorney because you could be looking at years in jail. And I'm not exaggerating here, over the last several years, prosecuting offices have taken this very, very seriously appropriately. But I'm just saying they take it very seriously because they're dealing with protective orders. And their thought is, I'm not just trying to support the judge and what the judge said, it's I'm trying to protect this citizen and this is a crime.

(36:13):

Without this protection, somebody could have been hurt. If you violated it, you may pose a threat and we are now going to criminally sanction you. We are going to bring this action and like I said, it could result in a long period of incarceration. So we're talking about the code 19 dash 13 dash one through four. That's really what you need to know. OCGA 19 dash 13 dash one, that'll lead you to two, three, and four and 4.1. But that's what's important. You need to read it. If you're going to file, it doesn't take long, read it so that you understand. Okay, so the protective order, 19 dash 13 dash four, the way it reads, it says, the court may, upon the filing of that verified petition, grant any protective order or approve any consent agreement to bring about cessation of acts of family violence. The court shall not have the authority to issue or approve mutual protective orders unless the respondent has filed a verified petition as a counter petition pursuant to 19 dash 13 dash three, no later than three days, not including Saturdays, Sundays, and legal holidays prior to the hearing. Understand what that means. You know that there was some kind of mutual combat situation. Unfortunate I don't need to keep saying that, but the other party races to court and files.

(38:01):

If you have a different version of what happened, you may very well want to file your own counter petition. I have heard of some courts clerk's offices refusing to take the petition. That's where you may want to contact an attorney because the law itself reads that you have the right to file that counter petition. You just need to do it three days prior to the hearing. You can't wait until the day of hearing, walk into court, file a counter petition and say, I'm ready for my case to be heard. So the orders can require numerous things and it goes into all of them in this code section of 19 dash 13 dash four. Very quickly, it can direct the respondent to refrain from acts, grant parties, possession of a residence or household and exclude the other party from that household. It can require parties to provide suitable alternate housing for the spouse, former spouse, or parent of the party's child or children.

(39:08):

It can award temporary custody. I'm paraphrasing at this point. We're running out of time. And so it can award temporary custody. It can order the eviction of a party from a residence. It can order support payments to support the spouse, IE alimony, spousal support or child support. It can deal with possession of personal property. It can order the respondent to refrain from harassing and interfering with the victim. It can award costs. It can even order the respondent to receive appropriate psychiatric and psychological services. So B, it then goes into that. A copy of the order is going to be issued by the clerk of the superior court to the sheriff.

(39:59):

And any order granted on the code section shall remain in effect for up to one year. Sometimes you'll hear about a six month protective order. Sometimes a 12 month, 12 month is the max. Now this is where C gets important. You need to understand that. However, it says that upon the motion of a petitioner and notice to the respondent and after a hearing, the court in its discretion may convert a temporary order granted under this code section to an order effective for not more than three years or to a permanent order. I have seen people get into trouble simply because they sort of stuck their head in the sand. They didn't respond. Let's say an order was entered, it was a 12 month order prior to the expiration, and that's important. You need to do it prior to the expiration of that temporary order, 12 month order. The other party then moves for the court to turn it into a permanent order. And remember also in Georgia what this means is your name goes on what's called the Family Violence Registry.

(41:14):

At the end of the protective order, your name can come off the registry because there's no order anymore. There's no protective order in place. If it gets turned into a permanent order, you're there forever. So if you don't respond, if you stick your head in the sand, if you are the respondent, they can move to turn it into a permanent order and the court has the authority to do it. The order is going to be issued. It says and effective throughout the state, and it's the duty of every superior court and sheriff and deputy and what have you to enforce it. So basically there's something that in the time I have remaining, and I will say, even if you feel like you can handle this on your own and you may very well be able to, talking to an attorney would be helpful, even just doing a consult so you have a better understanding of the process.

(42:17):

But something that I do not hear being used as often as maybe would be appropriate is 19 dash 13 dash four one. It reads that local law enforcement agency defined. Basically it allows, I'm going to paraphrase that the petitioner may elect to request periodic security checks from any local law enforcement agency with jurisdiction in which the petitioner resides. So it's great you have that piece of paper, you have that protection, but is there anything that you can get the police to do? And the answer is yes. You can take a copy of that, give it to the police or sheriff department in your jurisdiction where you live and say, Hey, I do have a concern. I have a protective order and I am asking for some security checks. It'll be up to the police or the sheriff when they stop by. But that is something else that you can do to make sure that you are protected because at the end of the day, that's what this is all about. I hope this helped. Thanks for listening.