Temporary Protective Orders in Georgia
If you are honestly afraid of your spouse, former spouse, or a boyfriend or girlfriend with whom you are living, and there has been an incident of “family violence”, defined below, you should file for a Temporary Protective Order or “TPO”.
O.C.G.A. section 19-13-1 defines “family violence” as “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.”
Under O.C.G.A. section 16-5-23, a person commits the offense of simple battery when he or she either: (1) intentionally makes physical contact of an insulting or provoking nature with the person of another or (2) intentionally causes physical harm to another. Under O.C.G.A. section 16-5-20, a person commits the offense of simple assault when he or she either: (1) attempts to commit a violent injury to the person of another or (2) commits an act which places another in reasonable apprehension of immediately receiving a violent injury.Who Can File: Do You have to be Married to File?
No. As noted, you do not have to be presently married to file for a TPO. Former spouses, co-parents, and individuals who are living together or who were formerly living together have the right to seek a TPO.How Do I File: What is the Procedure?
To secure a protective order, you must complete and file an initial petition with the Superior Court in the county in which the Defendant resides. If the Defendant resides out of state, you can file in the county of your residence. See, O.C.G.A. section 19-13-2.
Before you file, you will want to secure the assistance of Mr. Hippe. However, if you cannot afford Mr. Hippe, some counties offer assistance with the paperwork. For example, in Fulton County, if the petitioner cannot afford an Atlanta divorce attorney, the petitioner only needs to go to the 8th floor of the Fulton County Superior Courthouse and ask for “One Stop” assistance.Will The Court Grant "Ex Parte" Help?
“Ex parte” means only one party is present. The party filing the initial petition must identify specific facts and specify specific instances of violence that warrant the issuance of an ex parte order. The Petitioner fills out the paperwork and then goes and presents his or her petition to the judge, which may be a Superior Court judge, or a magistrate, or other judge sitting by designation.
Under O.C.G.A. section 19-13-3(b), the Petitioner must allege “specific facts” that show “probable cause exits to establish that family violence has occurred in the past and may occur in the future.” If the Petitioner does so, the Court “may order such temporary relief ex parte as it deems necessary to protect the petitioner or a minor of the household from violence.”What Happens if the Court Grants My Initial Ex Parte Petition?
If the Court grants the petition for ex parte relief, the Defendant will be typically be ordered to vacate the marital residence or the residence where the non married parties cohabitate and to stay away from the petitioner and any children until further order. The Defendant will be served with this ex parte order and must be given a hearing date and opportunity to defend the allegations within thirty (30) days.
This follow up, contested TPO hearing is critical. If the petitioner prevails at this hearing, a permanent restraining order can be granted, lasting 6 to 12 months. And this restraining order can have significant impact on a divorce case if children are involved and a divorce action is subsequently filed by either party. (The TPO action is a separate action from the divorce.) To prevail, the Petitioner has to prove by a preponderance of evidence that an act of family violence occurred. It is not a heavy burden of proof.