THE FAMILY VIOLENCE ACT. A. Current and former spouses (including common-law spouses) D. Persons living or formerly living in the same household

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1 THE FAMILY VIOLENCE ACT I. What is the Family Violence Act? O.C.G.A et seq. In 1981, the Family Violence Act was enacted to provide civil and criminal remedies to victims of domestic violence. There are no costs for filing a Family Violence Act petition. O.C.G.A (e)(4) II. Whom does the Act protect? A. Current and former spouses (including common-law spouses) B. Persons who share a child (regardless of whether they are/have been married or living together) C. Children and parents (including foster-relationships and step-relationships) D. Persons living or formerly living in the same household III. What offenses are considered to be Family Violence? A. Any felony B. The commission of the offenses of Battery, Simple Battery, Assault, Simple Assault, Criminal Damage to Property, Stalking, Unlawful Restraint, and Criminal Trespass C. Family violence does not include those acts which may be deemed to be reasonable corporal punishment, restraint, or detention. IV. Jurisdiction/Venue If the abuser is a Georgia resident, a family violence petition must be filed in the Superior Court of the county of the residence of the abuser. If the abuser is a nonresident, the petitioner can file in the county where she lives or in the county where the family violence allegedly occurred. The elements of personal jurisdiction under O.C.G.A must still be met. NOTE: When the respondent has moved from the county of martial residence, but has not exhibited an intent to remain in his new location or has vowed to return to the county of marital residence, venue is proper in either county. David-Redding v. Redding, 246 Ga. App. 792 (2000). V. What relief is available under the Act?

2 The Act not only defines family violence, but it authorizes both civil and criminal remedies after the occurrence of said violence. A Temporary Protective Order (TPO) is the main form of civil relief authorized by the Act. Through a TPO, a Court can: A. Restrain a party from certain conduct (including restraining a person from being at certain locations or from coming within a certain distance of another party) B. Evict the abuser from the residence and grant the other party exclusive use of the home C. Award temporary custody and establish temporary visitation D. Award property and temporary support E. Provide for either party to receive counseling VI. What is the process for obtaining a TPO? A. A sworn petition alleging that a family violence relationship exists (see Section II above) and that there is probable cause that family violence has occurred in the past and may occur in the future must be filed in Superior Court. B After considering the petition, the Judge may issue an ex parte order which grants any of the available relief on a temporary basis until such time that a hearing on the merits of the petition can occur. The hearing must occur within 30 days of the filing of the petition). Generally speaking, issues of property division, child support, and spousal support will not be addressed in the ex parte order, but will be reserved for the second hearing. C. After the petition has been filed, the respondent must be served with a copy of the ex parte order as well as a notice of a hearing. D. At the hearing (often referred to as the second hearing), the parties may be able to present a consent order to the judge if they are in agreement as to what relief should be granted. If not, a hearing will be held during which time each side may tender evidence, but the petitioner must show the allegations by a preponderance of the evidence. At the second hearing, the court may extend the ex parte order for up to one year. E. The order may be made permanent at the motion of a party followed by a hearing. VII. Enforcement

3 A TPO can be enforced in two distinct ways: A. Criminally - It is a misdemeanor crime to violate the provisions of a TPO which restrains an abuser from being at the residence. O.C.G.A (a). If the violation of the TPO is done without the injured party s consent and committed for the purpose of harassing or intimidating the injured party, the abuser may be subject to a felony arrest for Aggravated Stalking. O.C.G.A While relief through this criminal justice system may be immediate in that the abuser is arrested after issuance of a warrant, a conviction will require a finding of guilt beyond a reasonable doubt. A pattern and practice of failure to protect female victims of domestic violence may be a violation of their right to equal protection of the law. Suits for damages and injunctive relief under 1983 have been successfully filed on these grounds. B. Civilly - A motion for contempt may be brought by the injured party. VIII. Federal Law B The Violence Against Women Act (VAWA) The 1994 federal Violence Against Women Act includes several provisions that affect battered women in Georgia. Through it, an offender can be prohibited from possessing firearms (18 U.S.C. 922). Additionally, it authorizes the Georgia Family Violence Act and Stalking Protective Orders to be entitled to Full Faith and Credit in any state (18 U.S.C. 2665(a)). Protective Orders entered in other states are entitled to Full Faith and Credit here in Georgia as long as the issuing court had proper jurisdiction over the parties and the subject matter, and the respondent received notice and due process. under In the case of ex parte orders, they are entitled to Full Faith and Credit if the provision was made to provide notice and an opportunity to be heard within a reasonable time due process of law. Full Faith and Credit means that any valid protective order must be enforced wherever a violation occurs, regardless of where the order was actually issued. The order is to be enforced as though it were an order of the enforcing state. The order is to be enforced even if the victim would not be eligible for a protective order in the state where the violation occurs or if the protective order grants more extensive relief that would be available in the enforcing state. IX. Appeals

4 All orders entered under the Family Violence Act are subject to discretionary appeal procedures to the Court of Appeals. Schmidt v. Schmidt, 270 Ga. 461 (1991). X. Mutual Restraining Orders As of July 1, 2000, a court may not issue or approve a mutual restraining order except when both parties have filed verified petitions and the requirements of O.C.G.A have been satisfied. A verified counter petition must be filed at least business 3 days before the second hearing (ie, excluding Saturdays, Sundays, and legal holidays). O.C.G.A Be aware of Ganny v. Ganny, 238 Ga. App. 123 (1999). XI. Divorce Counterclaims in TPO Actions Divorce counterclaims are not permitted without compliance with the CPA. Filing fees must be paid and service is required. AG. Opinion U95-7. FL THE STALKING STATUTE I. What is the Stalking Statute? O.C.G.A et seq. In July, 1993, the Georgia Stalking statute became effective. II. Whom does the Statute protect? Everyone. Unlike the Family Violence Act, there is no relationship requirement. III. What constitutes stalking? A person commits the act of stalking when he follows, places under surveillance, or contacts another person at or about a place or places without the consent of the other person for the purpose of harassing and intimidating of another person. O.C.G.A Harassing and intimidating means a knowing and willful course of conduct directed at a specific person which causes emotional distress by placing such person in reasonable fear for such person s safety or the safety of a member of her immediate family, by establishing a pattern of harassing and intimidating conduct, and which serves no legitimate purpose. An overt threat of death or bodily injury is not a requirement. IV. What relief is available under the statute? A. Criminal - A first offense is a misdemeanor. A second conviction, however, is a felony. Additionally, if the stalking activity occurs while a TPO or other type of

5 restraining order is in effect, the offender may be subject to a felony arrest for Aggravated Stalking. O.C.G.A B. Civil - The statute also authorizes the issuance of a civil protective order. It incorporates sections of the Family Violence Act dealing with jurisdiction, venue, and assistance with filling out the forms. A family relationship is not required.