Temporary Protective Orders (TPOs) in Georgia
Family Violence and Stalking Trend
The Georgia Commission on Family Violence recently (2017) released fact sheet on domestic violence statistics and trends reported the following:
- Law enforcement officers responded to 65,487? family violence incidents in Georgia in 2015.
- There were 24,710? protective and stalking orders issued in Georgia in 2015.
- 1 in 4 women ?and 1 in 7 men? have experienced severe physical violence by an intimate partner in their lifetime.
- 1 in 7 women? and 1 in 18 men? have been stalked by an intimate partner during their lifetime to the point in which they felt very fearful that they or someone close to them would be harmed or killed.
Basis of Georgia Temporary Protective Order
In Georgia, persons who believe that they are in imminent danger as a result of family violence or stalking can ask the court for orders directing the offenders to keep their distance and avoid contact with them. These court orders are called Temporary Protective Orders or TPOs.
The most common instances where TPOs are issued are in cases of family violence and stalking.
Family violence involves any felony act, assault, battery, unlawful restraint, property damage, and trespass between any of the following, 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.
Stalking involves acts of directly or indirectly following, placing under surveillance, or contacting another person without his or her consent for the purpose of harassment and intimidation.
TPOs are very effective tools to protect the safety of the petitioners or their family who feel threatened by the violent acts of offenders. Sometimes, however, TPOs are used by petitioners for ill-motivated purpose. For example, petitioners might ask the court for TPOs to get sole custody of minor children in divorce cases.
How Are Temporary Protective Orders Acquired
Anyone who fears imminent acts of family violence or stalking can go to the Superior Court where the offender resides and file a petition for protective order. If the offender’s residence in unknown, the petition can be filed in the court where any acts of violence or stalking occurred in the past.
Filing a TPO petition is relatively easy. Superior Courts have ready-made forms to be filled out by the petitioner. The petition must state the relationship of the petitioner and respondent. A petitioner can also ask for a TPO on behalf of a minor who is in danger of similar acts of violence and stalking. The petition must allege specific facts and circumstances constituting acts of violence and stalking that occurred in the past. The petitioner must then allege that similar acts of violence may occur again in the future if a protective order is not issued.
Upon receipt of the petition, the petitioner will give a sworn testimony before the judge. The proceeding is ex parte, that is, the respondent is not present. Obviously, the respondent at this point cannot defend himself against the allegations of the petitioner no matter how untruthful or fabricated they may be. If convinced that the petitioner has reason to fear for his or her safety or the safety of his or her family, the judge will issue an ex parte order that prevents the respondent from getting near, contacting, or stalking the petitioner and his or her family.
The ex parte order typically restrains the offender from having any contact with petitioner directly or indirectly by emails, phone-calls, text messages, letters, social media, and through another person at any time at any location. This ex parte order is immediately served to the respondent through the county sheriff. The sheriff locates the respondent and hands them the ex parte order together with the copy of the petition. This ex parte order to stay away from petitioner usually last until a formal hearing.
Formal hearing is conducted as soon as practicable but not later than 30 days after the filing of the petition. This formal hearing is where the petitioner proves the allegations in the petition and the respondent defends himself in a proceeding. The formal hearing or trial is heard by the trial judge and not by a jury. This formal hearing is governed by the Rules of Civil Procedure, by the Rules of Evidence, and by the Rules of the Superior Court involved.
The petitioner and respondent must prove their claims and defenses through testimony, witnesses, and any other evidence available. The petitioner must prove that the respondent has in the past or will commit acts of violence or stalking in the future if not prevented by the judge. The respondent on the other hand presents evidence to dispute the allegations in the petition. In this formal hearing, the judge will determine whether there is a reason to extend or turn the ex parte temporary protective order into a permanent one (not more than 3 years).
Thorough preparation for the formal hearing is the key to winning TPO cases. The petitioner must prove the allegations in TPO cases by a “preponderance of evidence” as opposed to “beyond reasonable doubt” because a TPO is a “civil case” not “criminal case.”
Although possible, it is not advisable for parties to represent themselves during the formal hearing because the rules are very technical in nature. Furthermore, the emotional nature of the proceedings in a TPO hearing can often cloud a person’s judgment, especially when children, finances, and properties are involved.
Nature of Temporary Protective Orders
TPOs are temporary in nature. The initial ex parte order last for not more than 30 days or until the formal hearing or trial is conducted. The judge can extend the protective order to three years if, after the formal hearing, he finds reason to believe that petitioner is in danger unless the respondent is restrained from committing acts of family violence or stalking.
Since TPO proceedings are civil in nature, the trial records are oftentimes open to public viewing in the office of the clerk of Superior Court where the case is filed or in the court’s website. When parties ask the court to “seal the case” to prevent the public from accessing the TPO records, the court should balance the interest of the parties and the rights of the public.
TPOs are likewise recorded in Georgia’s Protective Order Registry. Law enforcement officers have access to this registry so that they can take necessary measures to protect petitioners and determine the extent of contact-restriction (the time and place where respondents cannot contact petitioners) imposed on the respondents.
TPOs do not appear on criminal records of respondents. However, violations of TPOs can show up in respondents’ criminal record. Violation of a TPO can result in jail time and fines. In addition to Contempt of Court, non-compliance of protective orders can result in criminal charges of Aggravated Stalking or criminal Violation of TPO.
Aggravated stalking is a felony punishable by up to 10 years imprisonment and $10,000.00 fine under OCGA §16-5-91. Violation of a TPO relating to family violence is a misdemeanor under OCGA §16-5-95. Respondents should not take these violations lightly because they are recorded in the Georgia Crime Information Center database. These records can have a negative impact on respondent’s personal life and professional career.
If you or someone you know need to file for protective order or need to fight a protective order brought about by frivolous suit, you can contact Bixon Law at 404-551-5684.