Family violence and domestic abuse is a serious problem. Georgia is, in fact, amongst the top 15 states in the nation for deaths due to domestic violence, according to the Georgia Coalition Against Domestic Violence. Domestic violence in Georgia was responsible for 149 deaths in 2017.
Georgia law defines domestic violence as felonies (such as homicide or robbery) or crimes such as simple battery, simple assault, battery, assault, stalking, property damage, unlawful restraint, or criminal trespass between spouses (present or past), parents of the same child, parents and children, stepparents and stepchildren, foster parents and foster children, or other persons living in the same house (or having lived together in the past). It specifically excludes reasonable punishment intended to correct behavior.
For too many Georgians, domestic abuse is an unfortunate reality. However, false accusations of family violence can have devastating consequences, as well. An accusation of domestic or family violence can come with immediate legal consequences even if there is no corroborating evidence or proof. This is one of the few areas of the law where accusations do not require evidence or proof.
Knowledge of the law related to domestic violence, including restraining orders, is extremely important if you have been accused of family violence. These accusations can cause lasting harm to your personal relationships, your work life and finances, and your reputation. If you have been accused of domestic violence, it is important to consult an experienced Atlanta domestic violence lawyer like Attorney David Schnipper, who can help protect your rights.
What Is a Restraining Order?
Restraining orders, also known as protective orders, are court orders issued against a person alleged to have committed family violence.
To obtain a restraining order, the person who alleges the violence must petition the superior court. The petition must contain specific facts. It needs to establish probable cause that family violence or domestic abuse happened and will continue to happen in the absence of a protective order.
Restraining orders can do multiple things depending on the circumstances. It can, for instance:
- Order the accused person to leave the other party alone
- Require the accused to leave the house, leaving the other party in possession of it
- Mandate that the accused abuser provide alternate housing for the other party(s)
- Help the alleged victim to retrieve personal property
- Award temporary child custody to the accused abuser and set temporary visitation rights
- Order the accused abuser to pay temporary child support and/or spousal support
- Award court costs and attorney’s fees to either party
- Order counseling
The accused person does not have to be present during a hearing to impose a restraining order. Even if only the alleged victim is present, the Court may grant a temporary protective order to protect that person from violence.
When a petitioner files for a restraining order, the court must hold a hearing within 30 days. At the hearing, the petitioner needs to prove that the facts alleged in the petition are true. The court listens to both sides of the story. To grant a more permanent restraining order, the court will require more evidence.
Family Violence Protection Orders last up to one year. They can be extended for as many as three years.
What Are the Penalties for Violating a Restraining Order?
If the accused violates a restraining or protective order, they can be convicted of contempt of court and/or a misdemeanor. Penalties for a misdemeanor can include a $1,000 fine and as many as 12 months in jail.
A violation can also be considered “stalking” or “aggravated stalking.” These offenses can be charged either as a misdemeanor or as a felony. Felonies convictions carry a required sentence of at least 12 months in jail and a fine. The court may consider a prior history of family violence or domestic abuse and restraining orders in determining the sentence.
Is a Specific Relationship Required to Petition for a Restraining Order?
Many people think of restraining orders as only involving spouses or domestic partners. However, the parties involved in a restraining order can be much broader, including current or former spouses, parents of the same child, parents and their children, stepparents and their stepchildren, foster parents and their foster children, or people who currently live in the same house or used to live in the same house.
What Are the Defenses Against a Restraining Order?
Domestic abuse cases can sometimes hinge on “he said/she said” scenarios with little or no supporting evidence. A temporary restraining order for 30 days may often follow this pattern.
However, a permanent restraining order requires the petitioner to prove their case and allows the accused a day in court to present their own evidence. The burden of proof is on the accuser. The defendant can call witnesses in their case and can present reasonable defenses.
Self-defense is a valid defense against a charge of domestic or family violence. If you genuinely feel at risk of bodily injury or harm, the law allows you to defend yourself—and to defend others, in certain circumstances. Self-defense must use proportional force against the other person based on the level of that other person’s violent behavior.
The court will also look at whether the specific actions the petitioner alleges the defendant took actually meet the legal definition of domestic violence. The case also needs to meet the relationship requirements specified by restraining order law.
An Atlanta Restraining Order Lawyer Can Help You
If you are the accused in a restraining order petition, you may be anxious about losing custody of your children, access to your house, or being subject to fines and a jail sentence. Family violence and related convictions can have lifelong negative impacts on both you and your family.
Family and domestic abuse laws are complicated. An experienced restraining order attorney can carefully review the evidence, gather statements from experts and witnesses, and build a strong defense. At Schnipper Law, we will review all the facts, advise you of your options, and fight vigorously to see that justice is done. Call (404) 545-5845 or contact us today.