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Georgia: Restraining Orders

Contents

  1. Introduction
  2. Family Violence Protective Orders
  3. Stalking Protective Orders

  1. Introduction

    Victims of nonconsensual online publication of sexually explicit material may be able to obtain a restraining order that prohibits the perpetrator from continuing to harass the victim online. In Georgia, a victim can petition for a protective order to either protect against (1) family violence or (2) civil stalking. A victim seeking a protective order for “family violence” must be trying to restrain family members, including past or present spouses or persons living in the same household. A victim seeking a civil stalking protection order need not have any relationship to the defendant.

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  2. Family Violence Protective Orders

    1. Introduction

      Victims of “family violence” may obtain a temporary and/or permanent protective order against abusers. This protection is limited to “family violence,” so abusers that do not fall under this definition are not subject to these orders.

    2. Text of Statute(s)

      (1) Ga. Code Ann. § 19-13-1 – “Family Violence” defined

      As used in this article the term "family violence" means the occurrence of one or more of the following 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:

      (1) Any felony; or

      (2) Commission of offenses of battery, simple battery, simple assault, assault, stalking, criminal damage to property, unlawful restraint, or criminal trespass.

      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.

      (2) Ga. Code Ann. § 19-13-2 – Jurisdiction of superior court

      (3) Ga. Code Ann. § 19-13-3 – Filing of petition seeking relief from family violence; granting of temporary relief ex parte; hearing; dismissal of petition upon failure to hold hearing; procedural advice for victims.

      (4) Ga. Code Ann. § 19-13-4 – Protective orders and consent agreements; contents; issuing copy of order to sheriff; expiration; enforcement

      (5) Ga. Code Ann. § 19-13-6 – Penalties

      A violation of an order issued pursuant to this article may be punished by an action for contempt or criminally punished as provided in Article 7 of Chapter 5 of Title 16.

    3. Cases

      1. Lewis v. Lewis, 728 S.E.2d 741 (Ga. Ct. App. 2012)
        • Procedural Posture: Plaintiff appealed the court’s dismissal for failure to show reasonably recent act of family violence.
        • Law: Family violence protective orders
        • Facts: After the defendant and the plaintiff were married, the defendant directed harassment, threats, and violence toward the plaintiff, including threats to kill the plaintiff. The plaintiff moved, but defendant located the new residence and appeared unannounced on multiple occasions. Defendant assaulted plaintiff in driveway of the residence and drove off with the four kids in the vehicle, leaving plaintiff with an injured arm and a cut on her abdomen. Plaintiff took out a warrant for defendant’s arrest and defendant agreed to stay away from residence and refrain from contacting plaintiff except for visitations to the children. Defendant appeared at plaintiff’s residence again after being served child support and was enraged based on the look on his face and his demeanor. Plaintiff applied for and obtained an ex parte temporary protective order for family violence. When the court convened to hear evidence, the court found that while plaintiff presented extremely credible evidence of the defendant’s violence she must dismiss the petition because it was not “reasonably recent” family violence. The assault was a year earlier.
        • Outcome: The appellate stated that the statute requires the plaintiff to allege and prove by a preponderance of the evidence that the person against whom the protective order is sought has engaged in family violence at some unspecified time in the past and may engage in such violence again in the future. The court held there “simply is no requirement that any past act of family violence alleged in the petition be ‘reasonably recent.’” The recency of past violence may bear upon the likelihood of future violence, but a “reasonably recent” act of violence is not required. The court vacated the judgment and remanded the case for another hearing on the protective order.

    4. Practice Tips

      • “Family Violence” applies to a felony, battery, simple battery, simple assault, assault, stalking, criminal damage to property, unlawful restraint, or criminal trespass committed 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.1
      • The plaintiff must provide by a preponderance of the evidence that relief is needed.2
      • In general, a temporary ex parte order is intended to protect a victim against the abuser until the court can hold a hearing. These are used when the victim is in immediate danger, and the judge should be informed of past domestic violence in order to make an informed decision. A temporary ex parte order lasts up to 30 days and can be extended upon agreement of both parties.3
      • A family violence protective order is ordered by the court after a hearing in which the victim and the abuser present both sides of the story. These orders are for one year, but the court can make the order effective for three years or establish a permanent order.
      • Georgia’s family violence restraining order structure permits law enforcement, if authorized by the judge in the order, to remove an abuser from the household where they reside.4 This makes the protective orders an effective mechanism to protect against abuse.
    1. Ga. Code Ann. § 19-13-1. ↩
    2. Ga. Code Ann. § 19-13-3. ↩
    3. Ga. Code Ann. § 19-13-3. ↩
    4. Ga. Code Ann. § 19-13-4. ↩
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  3. Stalking Protective Orders

    1. Introduction

      In situations in which a WMC victim is harassed or intimidated (including through electronic means), he or she may file a petition for a restraining order for his or her harasser for stalking to prevent further contact with the harasser.

    2. Text of Statute(s)

      See Ga. Code Ann. §§ 16-5-94, 16-5-90, above under Civil Stalking Laws.

    3. Cases

      1. White v. Raines, 771 S.E.2d 507 (Ga. Ct. App. 2015)
        • Procedural Posture: Defendant appealed the court’s grant of a continuance to a stalking protective order sought by his ex-wife.
        • Law: Stalking ex-parte temporary protective order
        • Facts: Plaintiff filed a “Petition for Stalking Temporary Protective Order alleging that her ex-husband had harassed her with unwanted phone calls and text messages, accessed her bank account, and followed her. She was granted a temporary protective order and both parties appeared for a hearing to evaluate the merits of the allegations. The court asked questions and ultimately halted the proceedings, announcing a continuance. The Georgia Court of appeals granted the defendant’s request for an interlocutory appeal.
        • Outcome: The appellate court found that the trial court erred in continuing the TRO against the ex-husband of the victim for another 30 days to evaluate his behavior because the statute mandates a hearing on the merits of the allegations within 30 days of the petition. The court reversed the judgement and found for purposes of obtaining protective order, within 30 days after the petition is filed; this 30-day deadline cannot be ignored.
      2. Norman v. Doby, 741 S.E.2d 293 (Ga. Ct. App. 2013)
        • Procedural Posture: Plaintiff appealed decision that there was insufficient evidence for restraining order.
        • Law: Stalking ex-parte temporary protective order
        • Facts: Plaintiff filed a “Petition for Stalking Temporary Protective Order” alleging that defendant followed her, placed her under surveillance, and contacted her without her consent for the purpose of harassing and intimidating her. Following a hearing, the court issued a 12-month restraining order. Defendant petitioned for and was granted a new trial where the court found in a hearing that there was insufficient evidence to support the original protective order, but directed the parties to comply with the visitation provisions of the restraining order to which both parties consented. The plaintiff filed an appeal to review the trial court’s decision to grant a new trial motion. Specifically, plaintiff contended that the trial court erred in finding that the evidence in the original hearing was insufficient as a matter of law. The plaintiff presented evidence that the defendant called 50 times during one weekend, cursed at defendant in text messages, and followed plaintiff in the car for 10 miles before cursing at her in front of their children.
        • Outcome: The appellate court found that the trial court had not erred in finding the evidence insufficient to support the original restraining order. Specifically, the plaintiff showed only one time where defendant followed the plaintiff and that the phone calls were made to contact the children, which the court viewed as a legitimate purpose. In addition, the court reversed the trial court’s order requiring the parties to comply with the amended consent orders without their consent. The court explained that “absent proof by a preponderance of the evidence” that the allegations are true, the statute does not permit any relief whatsoever.
      3. Ramsey v. Middleton, 713 S.E.2d 428 (Ga. Ct. App. 2011)
        • Procedural Posture: Defendant appealed court’s decision to grant a stalking protective order.
        • Law: Stalking ex-parte temporary protective order
        • Facts: After a 15 year personal relationship, defendant had a contract to paint a local school where plaintiff’s children attended. Plaintiff gave testimony as a character witness in unrelated litigation. Plaintiff then began making complaints that he would be in the same areas where plaintiff picked up the children and requested the school resource officer inform defendant to stay away from her and her children due to her fear from their past history. Plaintiff never spoke with defendant regarding this request nor did she provide any explanation concerning what occurred in their history. Defendant allegedly pulled into the school parking lot one day and drove the car directly at the plaintiff and children in a parked vehicle. Plaintiff called the police and sought a protective order.
        • Outcome: The appellate court found that the trial court had erred in finding the evidence sufficient to support the original restraining order. Specifically, the plaintiff did not show a “pattern of harassing and intimidating behavior” and the court explained that a single violation of a protective order by itself is insufficient. Further, the defendant had a right to be at the school while painting the school as contracted. Therefore, the court found that the plaintiff did not meet the burden of showing that the defendant had stalked plaintiff and reversed the judgement.

    4. Practice Pointers

      • Stalking occurs when for the purpose of harassment or intimidation someone follows, places under surveillance, or contacts another person at or about a place or places without the consent of the other person.1 Harassment and intimidation occur when the stalker knowing and willfully causes emotional distress by placing the victim in reasonable fear for his or her safety or the safety of a member of his or her immediate family, by establishing a pattern of harassing and intimidating behavior, and which serves no legitimate purpose.
      • There are ex parte temporary protective orders and final protective orders. A temporary protective order can order the stalker to (1) stop stalking, harassing, or interfering; (2) stay a certain distance away; and (3) have no contact with the victim or his or her family. Temporary protective orders can be issued ex parte without the presence of the stalker, and after the order, the court must hold a hearing within 30 days where each party will present their evidence.2
      • Final protective orders can establish all of the temporary protections described above as well as (1) order the stalker to get mental health services to prevent future stalking and (2) order the stalker to pay attorney’s fees (although conversely the victim may have to pay attorney’s fees if her or she loses the case). A final protective order typically lasts up to one year, but the victim can file a motion to extend the order to up to three years or permanently.
      • The standard for a protective order based on stalking is a preponderance of the evidence.3 There must be a pattern of harassing and intimidating behavior to obtain a protective order for stalking.4
    1. Ga. Code Ann. § 16-5-90. ↩
    2. See Ga. Code Ann. § 16-5-94. ↩
    3. Pilcher v. Stribling, 647 S.E.2d 8 (Ga. Ct. App. 2007). ↩
    4. Ramsey v. Middleton, 713 S.E.2d 428, 429 (Ga. Ct. App. 2011). ↩
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