2020 Georgia Code
Title 19 - Domestic Relations
Chapter 13 - Family Violence
Article 1 - Granting of Relief by Superior Courts
§ 19-13-4. Protective Orders and Consent Agreements; Contents; Delivery to Sheriff; Expiration; Enforcement

1. The court may, upon the filing of a verified petition, grant any protective order or approve any consent agreement to bring about a cessation of acts of family violence. The court shall not have the authority to issue or approve mutual protective orders concerning paragraph (1), (2), (5), (9), or (11) of this subsection, or any combination thereof, unless the respondent has filed a verified petition as a counter petition pursuant to Code Section 19-13-3 no later than three days, not including Saturdays, Sundays, and legal holidays, prior to the hearing and the provisions of Code Section 19-13-3 have been satisfied. The orders or agreements may:
   1. Direct the respondent to refrain from such acts;
   2. Grant to a party possession of the residence or household of the parties and exclude the other party from the residence or household;
   3. Require a party to provide suitable alternate housing for a spouse, former spouse, or parent and the parties' child or children;
   4. Award temporary custody of minor children and establish temporary visitation rights;
   5. Order the eviction of a party from the residence or household and order assistance to the victim in returning to it, or order assistance in retrieving personal property of the victim if the respondent's eviction has not been ordered;
   6. Order either party to make payments for the support of a minor child as required by law;
   7. Order either party to make payments for the support of a spouse as required by law;
   8. Provide for possession of personal property of the parties;
   9. Order the respondent to refrain from harassing or interfering with the victim;
   10. Award costs and attorney's fees to either party; and
   11. Order the respondent to receive appropriate psychiatric or psychological services as a further measure to prevent the recurrence of family violence.
2. A copy of the order shall be issued by the clerk of the superior court to the sheriff of the county wherein the order was entered and shall be retained by the sheriff as long as that order shall remain in effect.
3. Any order granted under this Code section shall remain in effect for up to one year; provided, however, that upon the motion of a petitioner and notice to the respondent and after a hearing, the court in its discretion may convert a temporary order granted under this Code section to an order effective for not more than three years or to a permanent order.
4. A protective order issued pursuant to this Code section shall apply and shall be effective throughout this state.It shall be the duty of every superior court and of every sheriff, every deputy sheriff, and every state, county, or municipal law enforcement officer within this state to enforce and carry out the terms of any valid protective order issued by any court under the provisions of this Code section.

(Ga. L. 1981, p. 880, § 4; Ga. L. 1982, p. 2300, §§ 1, 2; Ga. L. 1988, p. 1250, § 1; Ga. L. 1993, p. 788, § 1; Ga. L. 1994, p. 1270, § 8; Ga. L. 2000, p. 1081, § 2; Ga. L. 2003, p. 652, § 2.)

- Confidentiality of address of registered electors; term of request; procedure, § 21-2-225.1.

Rules for Mediation in Cases Involving Issues of Domestic Violence, Rule 1 et seq.

- Pursuant to Code Section 28-9-5, in 2000, "paragraph" was substituted for "paragraphs" in the introductory language of subsection (a).

- For article, "Domestic Relations Law," see 53 Mercer L. Rev. 265 (2001). For survey article on domestic relations law, see 60 Mercer L. Rev. 121 (2008). For annual survey of law on domestic relations, see 62 Mercer L. Rev. 105 (2010). For article on domestic relations, see 66 Mercer L. Rev. 65 (2014). For note on 1993 amendment of this Code section, see 10 Ga. St. U.L. Rev. 126 (1993).

Temporary protective order obtained under the Family Violence Act, O.C.G.A. § 19-13-1 et seq., was not subject to the 30-day expiration period applicable to temporary restraining orders. Carroll v. State, 224 Ga. App. 543, 481 S.E.2d 562 (1997).

- When a defendant was indicted for aggravated stalking under O.C.G.A. § 16-5-91(a) in violation of a protective order issued under O.C.G.A. § 19-13-4, a criminal contempt proceeding based on the same incident could trigger the double jeopardy clause of the Fifth Amendment. The protective order violation contained no elements not contained in the criminal offense; furthermore, the protective order specifically enjoined the defendant from surveilling the subject of the order for the purpose of harassing and intimidating the subject as also proscribed by § 16-5-91(a). Tanks v. State, 292 Ga. App. 177, 663 S.E.2d 812 (2008).

- When a mother in her petition under the Family Violence Act, O.C.G.A. § 19-13-1 et seq., alleged that the father of her child had abused her and admitted to damaging the father's property after one incident of abuse, and the father did not file a counterpetition, the trial court did not have the authority to include mutually protective provisions in the order under O.C.G.A. § 19-13-4(a)(1), (9), and (11). Moreover, if the acts to which the mother admitted in her petition were to be used as the basis for issuance of a protective order against her, or if she had engaged in other or different acts warranting such relief, § 19-3-4(a) and the requirements of due process entitled her to notice and an opportunity to prepare a defense before appearing at the hearing. Williams v. Jones, 291 Ga. App. 395, 662 S.E.2d 195 (2008).

- In light of the purpose of the Family Violence Act, O.C.G.A. § 19-13-1 et seq., and the fact that a hearing was started but had to be continued, the trial court did not err in holding that a temporary protective order could remain in effect beyond the six-month period established by subsection (c) of O.C.G.A. § 19-13-4 without first holding a hearing and entering an order making the protective order permanent. Duggan v. Duggan-Schlitz, 246 Ga. App. 127, 539 S.E.2d 840 (2000).

- Temporary protective order (TPO) issued under O.C.G.A. § 16-5-94 stood dismissed as a matter of law after 30 days without a hearing pursuant to O.C.G.A. § 19-13-3(c); after that date, the superior court lacked the power to enforce the TPO, as provided in O.C.G.A. § 19-13-4(d), or order the parties to comply with a settlement agreement. Although the parties allegedly agreed to continue the hearing, there was no showing in the record of such consent. Peebles v. Claxton, 326 Ga. App. 53, 755 S.E.2d 861 (2014).

- Trial court did not have to make specific findings to support the court's temporary award of child custody since a finding that the award was in the best interests of the children was implicit in the court's order. Baca v. Baca, 256 Ga. App. 514, 568 S.E.2d 746 (2002).

- Temporary protective order (TPO) obtained by the defendant's girlfriend did not constitute a valid search warrant and was not a substitute for a search warrant authorizing entry into the defendant's home and, therefore, the trial court erred by denying the defendant's motion to suppress because the TPO did not meet the warrant and probable cause standard of the Fourth Amendment and O.C.G.A. § 17-5-20 and the state did not articulate a need to deviate from the requirement of obtaining a warrant to search the defendant's home. State v. Burgess, 349 Ga. App. 486, 826 S.E.2d 352 (2019).

- Order dismissing the father's petition for family violence protective orders on behalf of the children against the mother was upheld because much of the evidence of what the children said about the mother came from the testimony of the father, who had a history of making unfounded allegations of child abuse against former wives, including the mother. Perlman v. Perlman, 318 Ga. App. 731, 734 S.E.2d 560 (2012).

- Trial court erred by applying the divorce and alimony "disparity of income" standard under O.C.G.A. § 19-6-2(a)(1) to a motion for attorney's fees filed under the Family Violence Act, O.C.G.A. § 19-13-1 et seq. Suarez v. Halbert, 246 Ga. App. 822, 543 S.E.2d 733 (2000).

- After a wife initiated an effort to obtain a permanent order of protection against the husband, whom the wife was divorcing, while the temporary protection order was in effect, and the husband received notice and was given a hearing on the issue, the trial court properly issued a permanent order pursuant to O.C.G.A. § 19-13-4(a); the fact that the temporary order had expired was immaterial to the trial court's authority to enter the permanent order. Nguyen v. Dinh, 278 Ga. 887, 608 S.E.2d 211 (2005).

- Appellate court properly upheld the modification of a permanent protection order issued in a family violence matter between parents because O.C.G.A. § 19-13-4(c) contemplated that the duration of such orders could be modified based on changing conditions and circumstances, and the father sufficiently alleged such changed circumstances, including that neither party had custody of the child. Mandt v. Lovell, 293 Ga. 807, 750 S.E.2d 134 (2013).

Text of O.C.G.A. § 19-13-4(c) contemplates that the duration of family violence protective orders may be modified based on changing conditions and circumstances. Thus, a restrained party who seeks termination of a family violence permanent protective order must prove by a preponderance of the evidence that a material change in circumstances has occurred, such that the resumption of family violence is not likely and justice would be served by termination of the order and in reviewing cases such as this, a court should look to the totality of the circumstances. Mandt v. Lovell, 293 Ga. 807, 750 S.E.2d 134 (2013).

- Because a trial court considering a mother's request for a protective order had the authority to change custody and visitation only temporarily under O.C.G.A. § 19-13-4(a)(4), the trial court erred by entering a protective order that permanently enjoined a father who had visitation rights from having any contact with his children. McCarthy v. Ashment, 338 Ga. App. 858, 790 S.E.2d 651 (2016).

- In granting a neighbor a three-year protective order against the defendant under O.C.G.A. §§ 16-5-90 and16-5-94, the trial court exceeded the court's authority in banning the defendant from the defendant's residence for three years because this would prevent the defendant from going to the defendant's home even when the neighbor was not at the neighbor's home; the stalking statute protected people, not places. Bruno v. Light, 344 Ga. App. 799, 811 S.E.2d 500 (2018).

- Although a one-year protective order against a husband had expired at the time of his appeal, rendering certain evidentiary issues moot, other issues which tended to evade review were considered. The trial court did not err in transmitting the protective order to the Georgia Protective Order Registry as required by O.C.G.A. § 19-13-4. Birchby v. Carboy, 311 Ga. App. 538, 716 S.E.2d 592 (2011).

- Widow's argument, that a determination denying her benefits on the grounds that her separation from her husband was permanent was "contrary to law" because the ex parte protective order under which the decedent was removed from the home the day before he died of a self-inflicted gunshot wound would have expired automatically by operation of law unless it were made permanent after a hearing and order, pursuant to O.C.G.A. § 19-13-4(c), was rejected; the decision denying benefits was not based on an understanding that the protective order was itself permanent, but merely on a finding that the order evinced the couple's intention to separate permanently. Smith v. Delta Airlines, Inc., F.3d (11th Cir. Jan. 25, 2007)(Unpublished).

- Defendant's conviction for violating a family violence protective order as a lesser included offense of aggravated stalking was reversed on appeal because the defendant was not indicted for the family violence protective order violation; thus, the trial court erred in instructing the jury on the lesser offense. Edgecomb v. State, 319 Ga. App. 804, 738 S.E.2d 645 (2013).

Cited in Davis-Redding v. Redding, 246 Ga. App. 792, 542 S.E.2d 197 (2000); Elgin v. Swann, 315 Ga. App. 809, 728 S.E.2d 328 (2012); Neal v. Hibbard, 296 Ga. 882, 770 S.E.2d 600 (2015).

RESEARCH REFERENCES

C.J.S.

- 28 C.J.S., Domestic Abuse and Violence, § 16 et seq.

- Validity and application of statute allowing endangered child to be temporarily removed from parental custody, 38 A.L.R.4th 756.