Family violence is never acceptable. Unfortunately, it still occurs. When it does occur, Georgia law provides for the issuance of a “protective order” where immediate and present danger of violence or abuse is shown. Protective orders may be granted to a person in one of the following relationships:
- Past or present spouses;
- Persons who are parents of the same child;
- Parents and children;
- Step-parents and step-children;
- Foster parents and foster children; and
- Persons living, or formerly living, in the same household.
Between such groups of people, family violence is defined as any felony or the commission of any of the offenses of battery, simple battery, simple assault, assault, stalking, criminal damage to property, unlawful restraint, or criminal trespass. This includes threats to inflict bodily harm as well as any unwanted touchings.
To obtain a protective order under Georgia’s family violence statutes, a petition must be filed in the superior court of the county where the respondent (i.e., the person who committed the alleged family violence) resides, not necessarily where the alleged act of family violence occurred. Once a verified petition is filed in which the petitioner alleges specific facts that probable cause exists to establish that family violence has occurred in the past, and may occur in the future, the court will usually enter an ex parte (i.e., only hearing from one party) temporary order in a fashion and form as it deems necessary to protect the petitioner from further acts or threats of violence. Just as with other civil actions, the respondent must be personally served with a copy of this petition along with a copy of the ex parte order. Within thirty (30) days of the granting of such an ex parte order, a hearing must be held, at which time the petitioner must prove the allegations of the petition by a preponderance of the evidence. If the petitioner makes out his/her case, then the superior court shall have the authority to enter a protective order, for up to twelve (12) months, which may include any of the following types of relief:
- Direct the respondent to refrain from such acts;
- Grant to a party possession of the residence or household of the parties and exclude the other party from the residence or household;
- Require a party to provide suitable alternate housing for a spouse, former spouse, or parent and the parties child or children;
- Award temporary custody of minor children and establish temporary visitation rights;
- Order the eviction of a party from the residence or household and order assistance to the victim in returning to it, or order assistance in retrieving personal property of the victim if the respondent’s eviction, has not been ordered;
- Order either party to make payments for the support of a minor child as required by law;
- Order either party to make payments for the support of a spouse as required by law;
- Provide for possession of personal property of the parties;
- Order the respondent to refrain from harassing or interfering with the victim;
- Award costs and attorney’s fees to either party; and
- Order the respondent to receive appropriate psychiatric or psychological services as a further measure to prevent the recurrence of family violence.
Upon the expiration of such a twelve (12) month protective order, the petitioner may request the conversion of such an order into a permanent one.
The consequences for violating a protective order may be dire. A violation of an order issued pursuant to the family violence statutes may be punished by an action for contempt or criminally punished as a felony.
Rarely, however, are family violence protective orders permanent solutions to the issues that the parties are facing; many times, a divorce, legitimation, or custody action will also have to be filed in order to obtain full relief. The protective order is only a temporary solution; once it expires, both parties are relieved from all of its mandates. Thus, it is important to make sure that these cases are handled properly so that it will not have an unintended consequence on other litigation (e.g., divorce, legitimation, or custody action).
What Do I Do If I Am Served With A Family Violence Action?
Disputing false allegations of domestic violence can be a daunting task. In such a case, the respondent is essentially asked to prove a negative. Unfortunately, false allegations of domestic violence are often times made in order to gain some perceived leverage in some other action (e.g., divorce, modification of custody, temporary custody, temporary use of a residence, etc.). Without a doubt, it can also have an immediate economic impact on a person as he/she has to pay attorney’s fees, pay support, and find alternative living arrangements. It can also have a lasting economic impact on a person’s employment or his/her ability to obtain employment. Furthermore, it can prevent a party from obtaining a firearm or a license to carry a concealed firearm. Thus, the ramifications of the issuance of a protective order, based on false allegations, can be severe. This is not to say that there are not ways to challenge false allegations and reduce the impact of such allegations until a more detailed investigation can be performed.
Kupferman & Golden, Attorneys at Law, has decades of experience handling both sides of family violence cases. This experience provides us with the unique ability to advise regarding strategies to approach your case that will provide you with the greatest short term, as well as the long term, advantages.