October 21, 2013

How Do I Obtain a Family Violence Protective Order in Georgia?

To obtain a family violence protective order in Georgia, the victim must file a Petition in the Superior Court of the county in which the defendant resides. OCGA §19-13-2(a). If the defendant does not reside in Georgia, the Petition may be filed in the county in which the victim resides or where the family violence occurred. OCGA §19-13-2(b). (Figuring out where to file when the defendant lives out of state may be complicated so, if you are unsure, consult an experienced family law attorney.)

The Petition for protective order must allege one or more acts of family violence. OCGA §19-13-3(a). If the Judge finds that “probably cause exists to establish that family violence has occurred in the past and may occur in the future," the Judge may issue a temporary protective order to protect the victim from any further acts of violence. OCGA §19-13-3(b).

Within the next 30 days, the Court will schedule a hearing, which both parties will attend to make their case for why the protective order should or should not be extended. OCGA §19-13-3(c). As in all other civil cases, the victim must prove the allegations in his/her petition by a preponderance of the evidence. To prove his/her case, the victim should bring any and all evidence of the violence to the hearing including, but not limited to, pictures of injuries, damaged property, doctor’s reports, and witness statements.

If the victim proves his/her case by a preponderance of the evidence, the court may extend the protective order for a longer period of time. At that time, the court may also address concerns of child custody and support during the pendency of the order.

October 18, 2013

Family Violence in Georgia - Am I a Victim?

Georgia family law attorneys, unfortunately, get quite a bit of business from clients who have been victims of domestic violence. Often, these clients want a protective order against the person/family member who committed the violence against them. Under Georgia law, family violence is defined as the commission of any felony, battery, simply battery, simple assault, assault, stalking, criminal damage to property, unlawful restraint, or criminal trespass. OCGA §19-13-1. To be considered family violence, the commission of one or more of the above acts must occur between 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 formerly living in the same household. Id. The commission of one of the above offenses against a person not named in the above group is still a crime for which a person may be prosecuted, but it is not considered family violence.

It should be noted that “family violence” does not include “reasonable discipline administered by a parent to a child in the form of corporal punishment, restraint, or detention.” OCGA §19-13-1. Thus, in Georgia, a parent who spanks their child or makes their child stay in their room for a period of time as “reasonable discipline” will not be guilty of family violence.

If you or a loved one has been a victim of family violence, there are resources available for you. It will likely be beneficial for you to consider obtaining a temporary protective order for your own protection and that of your family.

September 21, 2012

New Court of Appeals Ruling with Important Implications for Atlanta Family Violence Cases

In May of this year, the Georgia Court of Appeals made an important decision which may impact how Petitions for Family Violence Protective Orders are handled in Georgia, including in the metro Atlanta counties. Specifically, Lewis v. Lewis, Court of Appeals No. A12A0601, makes it clear that trial courts are not permitted to condition the granting of a 12-Month Temporary Protective Order on a showing of a “reasonably recent” act of family violence. Prior to this ruling, some courts in Georgia were dismissing petitions brought under the Georgia Family Violence Act (O.C.G.A. § 19-13-1 et seq.) if the petitioner could not show a reasonably recent act of family violence. In the case which led to the Court of Appeals decision, the last act of violence had occurred more than a year before the petition was filed with the court. See here for details of case.

This new ruling may have a large impact on victims of domestic violence who previously chose not to pursue a protective order thinking too much time has lapsed since the acts of violence complained of. However, it is important to remember that the ruling in Lewis does not change the requirement under the Georgia Family Violence Act that a petitioner show that a protective order is necessary to “bring about a cessation of acts of family violence.” It therefore follows that more recent evidence of acts of violence are more likely to be persuasive with the court.

Our team of Atlanta family law attorneys is available to assist you in filing or handling issues under the Georgia Family Violence Act. Feel free to contact us if you have a family violence action you would like to discuss.

By Melissa Tracy, Associate, Meriwether & Tharp, LLC

August 13, 2012

Obtaining a Family Violence Protective Order in Georgia

There are specific requirements for obtaining a family violence protective order in Georgia, and courts cannot add additional requirements to those listed in the statute. In a recent case heard by the Georgia Court of Appeals, the parties separated afollowing an incident of family violence committed by the husband against the wife, and the wife moved to a new residence, the location of which she tried to keep from the husband. Lewis v. Lewis, A12A0601 (2012). The husband subsequently located the wife’s new residence and “on more than one occasion, he appeared at the residence unannounced and proceeded to harass and threaten” the wife. Id. at 2. After one particularly violent incident in late 2010, the wife took out a warrant for the husband’s arrest. The husband then agreed to stay away from the wife and moved to another state. Id.

A few months later, the husband moved back to Georgia and the wife served him with a petition for child support. Based upon the husband’s reaction to this lawsuit and her previous experience with him, the wife feared he would soon become physically violent with her again “because of the look on his face and his demeanor.” Id. at 3. The wife, therefore, applied for and received a temporary protective order under OCGA §19-13-3(b). At the hearing to extend that order for 12 months, however, the judge dismissed the petition for protective order because the wife could not show a “reasonably recent” incidence of family violence, as the last occurrence was almost a year prior. Id. at 4.

The wife appealed, arguing “the statute under which she sought a protective order, OCGA §19-13-3, does not absolutely require her to show a ‘relatively recent’ act of family violence.” Id. at 5. The Court of Appeals of Georgia agreed, looking to the plain language of the statute, which only requires that “family violence has occurred in the past and may occur in the future.” OCGA §19-13-3(b). There is no specific time requirement in this statute. In holding that the trial court abused its discretion, the Court pointed out that “[t]he recency of past violence may, of course, bear upon the likelihood of future violence, but a ‘reasonably recent’ act of violence is not absolutely required.” Id. at 6. The Court of Appeals, thus, vacated the order dismissing the wife’s petition and remanded the case for additional proceedings.

February 13, 2012

Can I get a temporary protective order in Georgia against someone who does not live in Georgia?

A temporary protective order can be issued against someone who does not live in Georgia. O.C.G.A. §19-13-2 gives the superior courts of Georgia jurisdiction over a nonresident charged with a commission of an act of family violence. Georgia will only have jurisdiction over the nonresident if he or she, either in person or through an agent, commits a tortuous injury in Georgia caused by an act or omission outside Georgia and the nonresident does one of the following things:

• Regularly does or solicits business in Georgia; or
• Engages in any other persistent course of conduct in the state of Georgia; or
• Derives substantial revenue from goods used or consumed or from services rendered in Georgia.

However, if the act of family violence is the placing of harassing or intimidating telephone calls or text messages to a person in Georgia, this is not enough to give Georgia jurisdiction. The act of family violence is considered to have occurred in the State where the telephone call was placed or from where the text message was sent. If phone calls or text messages from someone out of State are the only acts of family violence, Georgia may not have jurisdiction over the Respondent.

By Emily Yu, Associate Attorney, Meriwether & Tharp, LLC

January 20, 2012

Custody awarded to father in Georgia divorce case despite evidence of alleged family violence

The Supreme Court of Georgia recently affirmed a divorce action where the husband was awarded primary physical custody of the children despite evidence of alleged family violence. Finklea v. Finklea, S11F1804 (2012). At the final hearing in that divorce case, the parties “each testified extensively about acts of family violence committed by the other spouse, which led to multiple police reports filed against each other.” Id. at 2. In its final judgment, the trial court said it was making its decision “[a]fter hearing testimony of the parties and considering all the evidence tendered at trial.” Id. Neither party asked for written findings of fact supporting the custody award. Id. The trial court ultimately awarded primary physical custody to the husband.

The wife appealed, alleging that “in awarding primary physical custody of the parties’ two children to Husband, the trial court abused its discretion in failing to cosider evidence of alleged family violence perpetrated by Husband against her." Id. at 1. The Supreme Court of Georgia disagreed, holding that, under the circumstances described above, the trial court did consider evidence of family violence presented at the final hearing. Id. at 3. In addition, the Court found no abuse of discretion in the trial court’s award of primary physical custody to the husband. The trial court exercised its discretion in awarding custody to one parent over the other and “[w]here there is any evidence to support the decision of the trial court, this Court cannot say there was an abuse of discretion.” Id. at 3, quoting Haskell v. Haskell, 286 Ga. 112, 112 (2009).

December 2, 2011

Am I a victim of domestic violence?

Domestic violence or domestic abuse can exist in a number of ways. Most often, people think of a woman who has been beaten by her husband or boyfriend as a victim of domestic violence. It is important to remember, however, that a woman can be the abuser and a man can be the victim. Domestic violence occurs in all types of couples – heterosexual, homosexual, transgender, etc. – across all races and at all income levels. The form of abuse can vary as well and includes physical abuse (punching, kicking, slapping and hair pulling), emotional or mental abuse (talking down to someone, isolating them from their families, and using scare tactics), spiritual abuse (not permitting someone to freely exercise their religion), or economic abuse (not providing someone the money they need or constantly keeping tabs of someone’s spending). Victims of domestic violence often experience a combination of these types of abuse.

If you feel that you have been in a family violence situation or are currently going through a family violence situation, you can and should consider speaking with an Atlanta divorce attorney and obtaining a temporary protective order.

By Emily Yu, Associate Attorney, Meriwether & Tharp LLC

October 10, 2011

Definition of family violence in Georgia

Atlanta family law attorneys are often asked about the definition of family violence, and whether they are a victim under the laws of Georgia. In Georgia, “family violence” is defined broadly. The legal definition includes an occurrence of a felony or commission of battery, simply battery, simple assault, assault, stalking, criminal damage to property, unlawful restraint, or criminal trespass. OCGA §19-13-1(1) and (2). The statute also provides for a wide range of “family” relationships that qualify, and includes “acts between 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 formerly living in the same household.” Id. This definition of family violence extends to include roommates or previous roommates.

If you feel that you have been in a family violence situation or are currently going through a family violence situation, we highly recommend that you contact our Atlanta family law attorneys to discus obtaining a temporary protective order.


By Emily Yu, Associate Attorney, Meriwether & Tharp LLC

February 25, 2009

Atlanta Divorce Lawyers Guide to Divorce and Family Law Cases in Fulton County, Georgia: Guardian Ad Litem

Our final blog entry in our Atlanta Divorce Lawyers Guide to Divorce and Family Law Cases in Fulton County, Georgia is in regards to the Fulton County’s Guardian Ad Litem program. A Guardian Ad Litem is an attorney who has had at least 20 hours of specialized training for child welfare and custody issues. In cases involving contested child custody, modifications of custody, modification of visitation, allegations of child neglect or child abuse, the Court can assign a Guardian Ad Litem to more closely evaluate the situation and report back to the court its findings. The Court or the Guardian Ad Litem can order psychological evaluations and drug testing if applicable to help in making a custody determination.

The cost of a Guardian Ad Litem can be rather high for most divorces in Georgia. Litigants should be aware that Fulton County offers a Guardian Ad Litem (GAL) at a reduced hourly rate.

January 18, 2009

Temporary Protective Orders and Domestic Violence in Georgia

The procedure for obtaining a temporary protective order for family violence is unique compared to other court filings. The victim must go to the Superior Court in the county in which the Defendant resides to file a Petition alleging specific acts of family violence, as defined in O.C.G.A. §19-13-1. If the presiding Judge finds that probable cause exists to establish that family violence has occurred in the past and may occur in the future, the Court may issue a temporary ex parte Order to protect the victim from further acts of violence by requiring the Defendant to stay away from the victim. The Order may also include provisions concerning who will live in the home, who will have custody of any children, who will pay the bills, and provisions for support. The Defendant will then be served with the ex parte Order.

Within the next 30 days, the Court will schedule a hearing which both parties will attend. At the hearing, the victim must prove his/her allegations by a preponderance of the evidence and the Defendant will have a chance to present his/her defense. The victim should bring all evidence to the hearing, such as pictures of bruises, scratches or other injuries, doctor’s reports, audio recordings, and damaged property. If the family violence is proven by a preponderance of the evidence, the Order may be extended for a longer period of time. Also, the Court can address any concerns not addressed in the initial temporary order at this time including child support, spousal support, custody and visitation.