VIOLENCE IN THE HOME
Gregory D. Golden
- RESTRAINING ORDER vs. PROTECTIVE ORDER
The terms “restraining order” and “protective order” are typically used interchangeably by laypersons, lawyers, and even judges; however, these are two (2) distinctively different types of orders. A “restraining order” is in the nature of an injunction which may issue upon filing of an application forbidding a defendant from doing the threatened act. Black’s Law Dictionary, 6th ed. In domestic arena, often, restraining orders are included in divorce decrees and settlement agreements, similar to
“Each party is hereby restrained and enjoined from doing, or attempting to do, or threatening to do, any act of injuring, maltreating, vilifying, molesting, or harassing the other party or the minor children of the parties, whether at home, the workplace or elsewhere.”
A violation of a restraining order, such as this one, would subject the violator to the contempt powers of the court.
In contrast to a restraining order, a “protective order” is issued by a court in a domestic violence or abuse case; such an order may be granted immediately in cases where immediate and present danger of violence or abuse is shown. Black’s Law Dictionary, 6th ed. In the State of Georgia, such orders are governed by Chapter 13 of Title 19. A violation of a protective order may have much more dire consequences than the violation of a restraining order. Essentially, a protective order is a restraining order “with teeth.”
In the State of Georgia, protective orders may be granted to a person in one of the following relationships, as set forth in O.C.G.A. § 19-13-1, to-wit:
- 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. O.C.G.A. § 19-13-1. This includes threats to inflict bodily harm as well as any unwanted touchings.
In contrast to the venue requirements if these acts were brought as a criminal matter, 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 resides, not necessarily where the alleged act of family violence occurred. O.C.G.A. § 19-13-2(a). If the respondent is a non-resident of the State of Georgia, then proper venue would lie in the superior court in the county in which the petitioner resides or where the act involving family violence allegedly occurred. O.C.G.A. § 19-13-2(b). Just as with other civil actions, the respondent must be personally served with a copy of such a petition. O.C.G.A. § 9-11-4. Failure to obtain personal service will cause a dismissal of the action, as the ex parte protective order expires thirty (30) days from the date of issuance; if this occurs, a petition may be re-filed and personal service can be attempted again.
All petitions filed under the Family Violence statutes must be verified. 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 temporary order in a fashion and form as it deems necessary to protect the petitioner from further acts or threats of violence. O.C.G.A. § 19-13-3(b). Once such an ex parte temporary order is granted, it along with the petition must be personally served upon the respondent in order to become effective. 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, as in other civil cases; if a hearing cannot be conducted in such time, the petition must be dismissed, unless the parties otherwise agree. O.C.G.A. § 19-13-3(c).
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, to-wit:
- 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.
O.C.G.A. § 19-13-4(a). 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. O.C.G.A. § 19-13-4 (c).
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 under O.C.G.A. § 16-5-90 et seq. as a felony.
- DISPUTING FALSE ALLEGATIONS
Disputing false allegations 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.
First, unless there is physical evidence to support such an allegation, the determination of whether a protective order is granted may depend on “he said/she said” testimony. For example, if a wife alleges that her husband lunged at her and said he was going to hurt her, this would qualify as a violent act under Georgia’s Family Violence statute. In such a case, there is absolutely no physical evidence (presuming there is no other witness or recording of such an incident) to corroborate these allegations. What happens if the husband claims that he did no such thing? How does he prevent a court from giving his wife the benefit of the doubt or erring on the side of caution. Obviously, the credibility of each of the parties will have the largest impact on the court’s determination. In order to attempt to impeach the credibility of a petitioner, an attorney should:
- Question the actions of the petitioner immediately following the alleged incident. Did the petitioner remain in the residence or immediately vacate it? If the petitioner did not immediately vacate it, how fearful for his/her life could he/she really feel if the petitioner did not remove himself/herself from the situation? You would be shocked at the number of instances where, not only does the alleged victim remain in the house with the alleged perpetrator, but actually continues to share the same bedroom, and even the same bed wit the alleged perpetrator.
- Question whether the petitioner called the police or told anyone else about the alleged incident. Was it reasonable under your set of circumstances, for a person to seek assistance after being harmed or threatened with bodily harm. If an emergency call was made, then request a copy of the 911 recording. If the police were called and a report was made, it is imperative that a copy of the report be obtained. Remember that the police report is not admissible at the hearing; if the report contains favorable statements to your client, it is essential that the police officer be subpoenaed to appear at the hearing.
- Question whether any other of the petitioner’s actions, following the alleged incident, are reasonable for a person who has been harmed or threatened with bodily harm.
- Question what kind of contact (e.g., supervised, unsupervised, telephonic, etc.) the petitioner has initiated with the respondent since the alleged incident. Again, it would surprise a novice to know how often the alleged victim will contact the alleged perpetrator following an alleged instance of violence.
- Question the motivation of the petitioner for making such an allegation. Is there a pending divorce action? What perceived benefit, if any, does the alleged victim receive in bringing such a petition?
- Question whether the petitioner has filed other petitions for temporary protective orders against your client or others. You may be able to establish a pattern of abuse of the judicial system.
Second, unlike other civil actions, an attorney typically does not have a great amount of time to prepare a defense. An attorney could have anywhere from a few weeks to as little as a few days to prepare for such a hearing. Unlike many other situations, delays in proceeding to trial do not benefit the alleged perpetrator, as he/she is desirous of clearing his/her name and returning things to the status quo. Unlike other civil action in which the parties have at least six (6) months to perform discovery in order to discover information and narrow issues, a family violence action does not lend itself to such discovery devices. Certainly, interrogatories and requests for production of documents could not be timely propounded with any hope of getting a meaningful response in time for the hearing. However, depending on the timing of the service of the petition and the hearing, an attorney could depose the petitioner in order to determine the basis of his/her allegations. With such a preview of the petitioner’s testimony, an attorney would be able to better prepare a defense to such allegations, by obtaining evidence and witnesses that can contradict the petitioner’s false allegations.
Third, often times, petitions for protective orders are filed in conjunction with criminal charges. If the respondent is arrested following the alleged incident, disproving the false allegations of the family violence petition can be more difficult. In such a situation, it is an attorney’s duty to advise the client that he/she has a privilege against self-incrimination. O.C.G.A. 24-9-27. If the respondent testifies at the hearing for a protective order, then that testimony can be used against him/her in the criminal proceedings. Such a decision to testify must be made by the client. If feasible, an attorney specializing in criminal defense should be consulted. The innate desire to testify in order to disprove the false allegations must be tempered against the consequences of being convicted of criminal charges, even if they are based on false allegations.
Fourth, in an effort to lessen the immediate effects of false allegations as the basis of a family violence action, an attorney may serve his client well to negotiate a temporary order outside of the family violence action. This, obviously, is not going to be possible in every such case; however, if there is a pending divorce, modification, or legitimation action, a temporary order, mandating the same type of relief as sought in a family violence petition, may be entered in such an action. At the very least, this will prevent the entering of the defendant’s name into any family violence registry or sheriff’s database. Such a strategy will not directly address the false allegations but will temper their immediate effects and postpone dealing with them until you are better prepared.
Fifth, a hearing on a family violence petition is in the nature of a temporary hearing. Therefore, a respondent can have witnesses testify by affidavit. Uniform Superior Court Rule No. 24.5(A) states, in pertinent part, that
“[a]t temporary hearings the parties involved and one additional witness for each side may give oral testimony. Additional witnesses must testify by deposition or affidavit unless otherwise ordered by the court. Any affidavit shall be served on opposing counsel at least 24 hours prior to hearing.”
Ultimately, the judge will determine what weight should be given all such testimony, by person or affidavit. However, the ability to tender unchallenged testimony may help in disproving false allegations of family violence.
If false allegations are made and disproven at trial, what can a respondent do about it? In order to be able to use the petitioner’s testimony at a later time, it must have been taken down by a court reporter in order for the respondent to have any options. The first option is to use the testimony to impeach the petitioner in further court proceedings (e.g. divorce, modification of custody/visitation, etc.). A second option is to submit the testimony to a district attorney for the purpose of pursuing perjury charges against the petitioner. A person to whom a lawful oath or affirmation has been administered commits the offense of perjury when, in a judicial proceeding, he knowingly and wilfully makes a false statement material to the issue or point in question. O.C.G.A. 16-10-70. Yet, another option is to file suit against the petitioner for defamation or other tort, depending on the circumstances; the petitioner would not be entitled to any qualified immunity in such a circumstance. O.C.G.A. § 50-21-32.
- ADULT PROTECTIVE SERVICES
A “family violence shelter” means a facility approved by the Department of Human Resources for the purpose of receiving, on a temporary basis, persons who are subject to family violence; family violence shelters are distinguished from shelters operated for detention or placement of children only, as provided in O.C.G.A. § 15-11-48 (a). O.C.G.A. § 19-13-20(5). In order to be approved and funded by the Department of Human Resources, each shelter shall
(1) provide a facility which will serve as a shelter to receive or house persons who are family violence victims;
(2) receive the periodic written endorsement of local law enforcement agencies;
(3) receive a minimum of 25% of its funding from other sources; and
(4) meet the minimum standards of the department for approving family violence shelters.
There are a variety of resources for victims of family violence that vary according to the region. In order to assist your clients of such abuse, it is helpful to be able to make referrals to such organizations. The website, www.aardvarc.org/dv/states/gadv.shtml, lists some of the available resources by county and region in the State of Georgia. For more specific information about such shelters in the are that you practice, the Clerk of Superior Court should have such information readily available.
- CHILD PROTECTIVE SERVICES
In some cases, a child who is the victim of family violence will be able to obtain a protective order by and through their “next friend;” typically, this is a parent or someone else with custodial rights. In order to seek relief for a minor, the petitioner must be at least eighteen (18) years of age. O.C.G.A. § 19-13-3(a). Such a petitioner would go through the same procedures to obtain such a protective order as he/she would if he/she was obtaining it for himself/herself.
When there is not a “next friend” available to petition the court for a protective order, the Department of Family and Children Services has the ability intercede on the basis that a child is deprived. A “deprived child” is a child who is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health or morals. O.C.G.A. § 15-11-2(8)(A). If a court finds that a child is deprived, it may permit the child to remain with his or her parents, guardian, or other custodian, including a putative father, subject to such conditions and limitations as the court prescribes, including supervision as directed by the court for the protection of the child; or may transfer temporary custody to certain persons or entities. O.C.G.A. § 15-11-55.
- CHILD ABDUCTION
If parties are married, then the parties have equal rights to their child until there is a court order granting one party superior custodial rights. If the parties have not been married, then until the father legitimates the child, he does not have any custodial rights. People without custodial rights to a child are subject to a variety of criminal charges, including kidnapping, under O.C.G.A. § 16-5-40, or interference with custody, under O.C.G.A. § 16-5-45.
O.C.G.A. § 51-1-50(a)(3) establishes “Levi’s Call: Georgia’s Amber Alert Program” which signifies the voluntary program entered into by the Georgia Bureau of Investigation, the Georgia Emergency Management Agency, the Georgia Association of Broadcasters, and certain broadcasters licensed to serve in the State of Georgia. This program provides that if the Georgia Bureau of Investigation verifies that a child has been abducted and is in danger, and alert containing known details of the abduction is transmitted to the Georgia Emergency Management Agency. It is then submitted to broadcasters in Georgia who disseminate the alert to its listeners, viewers, and subscribers.
Abduction cases are not limited to Georgia or the United States. Children can be involved in international custody disputes as well. The United States is one of the countries that is part of the Hague Convention on the Civil Aspects of International Child Abduction; there are approximately seventy-four (74) other member countries. The purpose of this Convention is to insure the prompt return of children who have been abducted from their country of habitual residence or wrongfully retained in a contracting state not their country of habitual residence. The full text of the Convention, including substantive and procedural requirements, may be found at http://hcch.e-vision.nl/index_en.php?act=conventions.text&cid=24.
Furthermore, in cases involving international child abduction, the district attorney may take any lawful action to locate a child, obtain the return of a child, or enforce a child custody determination, if there is
- an existing child custody determination;
- a request to do so from a court in a pending child custody proceeding;
- a reasonable belief that a criminal statute has been violated; or
- a reasonable belief that the child has been wrongfully removed or retained in violation of the Hague Convention on the Civil Aspects of International Child Abduction.
O.C.G.A. § 19-9-95.