2021 Georgia Code
Title 16 - Crimes and Offenses
Chapter 5 - Crimes Against the Person
Article 7 - Stalking
§ 16-5-94. Restraining Orders; Protective Orders

1. A person who is not a minor who alleges stalking by another person may seek a restraining order by filing a petition alleging conduct constituting stalking as defined in Code Section 16-5-90. A person who is not a minor may also seek relief on behalf of a minor by filing such a petition.
2. Jurisdiction for such a petition shall be the same as for family violence petitions as set out in Code Section 19-13-2.
3. Upon the filing of a verified petition in which the petitioner alleges with specific facts that probable cause exists to establish that stalking by the respondent has occurred in the past and may occur in the future, the court may order such temporary relief ex parte as it deems necessary to protect the petitioner or a minor of the household from stalking. If the court issues an ex parte order, a copy of the order shall be immediately furnished to the petitioner.
4. The court may grant a protective order or approve a consent agreement to bring about a cessation of conduct constituting stalking. Orders or agreements may:
   1. Direct a party to refrain from such conduct;
   2. Order a party to refrain from harassing or interfering with the other;
   3. Award costs and attorney's fees to either party; and
   4. Order either or all parties to receive appropriate psychiatric or psychological services as a further measure to prevent the recurrence of stalking.
5. The provisions of subsections (c), (d), and (e) of Code Section 19-13-3, subsections (b), (c), and (d) of Code Section 19-13-4, and Code Section 19-13-5, relating to family violence petitions, shall apply to petitions filed pursuant to this Code section, except that the clerk of court may provide forms for petitions and pleadings to persons alleging conduct constituting stalking and to any other person designated by the superior court pursuant to this Code section as authorized to advise persons alleging conduct constituting stalking on filling out and filing such petitions and pleadings.

(Code 1981, §16-5-94, enacted by Ga. L. 1998, p. 885, § 3; Ga. L. 1999, p. 81, § 16; Ga. L. 2021, p. 658, § 1/HB 231.)

The 2021 amendment, effective July 1, 2021, substituted "subsections (c), (d), and (e)" for "subsections (c) and (d)" near the beginning of subsection (e).

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

- Ga. L. 1998, p. 885, § 4, not codified by the General Assembly, provides that this Code section is applicable to conduct occurring or allegedly occurring on or after July 1, 1998.

- For review of 1998 legislation relating to crimes and offenses, see 15 Ga. St. U. L. Rev. 62 (1998). For comment, "Engendering Fairness in Domestic Violence Arrests: Improving Police Accountability Through the Equal Protection Clause," see 60 Emory L.J. 1011 (2011).

JUDICIAL DECISIONS

Verification.

- O.C.G.A. § 16-5-94(c) requires only that a stalking petition be verified before a temporary protective order may be issued, not that the petition itself be signed; where a verification signed by plaintiff accompanied a stalking petition, verifying that the contents of the petition were true and correct, defendant's argument that the petition was somehow defective was without merit. McKlin v. Ivory, 266 Ga. App. 298, 596 S.E.2d 673 (2004).

- Publishing or discussing the former love interest's medical condition with others was not stalking since it did not threaten the love interest or the love interest's family's safety; therefore, the prohibition in the protective order exceeded the statutory scope of authority. Collins v. Bazan, 256 Ga. App. 164, 568 S.E.2d 72 (2002).

Even though the appellee admitted to committing certain acts which satisfied some of the elements under O.C.G.A. § 16-5-90, based on a denial of the intent required under the statute, no abuse resulted in denying the appellant injunctive relief and setting the case for a bench trial. Anderson v. Mergenhagen, 283 Ga. App. 546, 642 S.E.2d 105 (2007).

- 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).

- Issuance of the protective order underlying the appellant prisoner's conviction for aggravated stalking under the family violence act when the prisoner and the victim had never been married, were not living in the same house, and did not have children together, did not affect the court's jurisdiction since the order expressly provided that its violation would subject the prisoner to prosecution for aggravated stalking; the superior court judge had the authority to issue a protective order under the stalking statute, O.C.G.A. § 16-5-94, or the Georgia Family Violence Act, specifically O.C.G.A. § 19-13-2. Giles v. State, 257 Ga. App. 65, 570 S.E.2d 375 (2002).

Evidence that defendant, over the high school student's objections, repeatedly placed the student under surveillance, took pictures of the student, and shouted at the student was sufficient to show defendant was stalking the student and justified the entry of a protective order against defendant. Johnson v. Smith, 260 Ga. App. 722, 580 S.E.2d 674 (2003).

Evidence was sufficient under O.C.G.A. § 16-5-90 to support the entry of a stalking twelve-month protective order pursuant to O.C.G.A. § 16-5-94(d) against the defendant because the defendant contacted the victim via abusive emails numerous times and placed the victim under surveillance on several occasions without the victim's consent, and the frequency and nature of the defendant's contact and surveillance was such that the trial court could conclude that it was done for the purpose of harassing and intimidating the victim; there was also sufficient evidence that the contact and surveillance put the victim in reasonable fear for the victim's safety. Thornton v. Hemphill, 300 Ga. App. 647, 686 S.E.2d 263 (2009), cert. denied, No. S10C0413, 2010 Ga. LEXIS 342 (Ga. 2010).

Trial court did not abuse the court's discretion in finding that the evidence supported the grant of a stalking protective order under O.C.G.A. § 16-5-94(d) against a neighbor who, among other conduct, discharged a weapon near the victims' house, attempted to run the victim off the road, and repeatedly drove by or stopped in front of the victims' house and stared at them. Garnsey v. Buice, 306 Ga. App. 565, 703 S.E.2d 28 (2010).

Trial court did not abuse the court's discretion in granting the applicant a stalking protective order under O.C.G.A. § 16-5-94(d) against a neighbor. The neighbor placed the applicant, applicant's wife, and applicant's stepchild under surveillance, contacting them for the purpose of harassing and intimidating them over a three-week period by screaming physical threats and taking pictures of the applicant's family from the road while they were on their front porch. The neighbor also swerved the neighbor's vehicle at the applicant's stepchild in a manner that forced the stepchild's vehicle partially off the road. Elgin v. Swann, 315 Ga. App. 809, 728 S.E.2d 328 (2012).

Evidence supported the conclusion that respondent engaged in a pattern of harassing and intimidating conduct directed toward the petitioner as the petitioner testified that the respondent's perseverance, the purported subpoena, and the creation of email and Facebook accounts in the petitioner's name frightened the petitioner and, thus, the trial court did not abuse the court's discretion in converting the 12-month protective order to a three-year permanent protective order. Swearngin v. Rowell, 356 Ga. App. 67, 846 S.E.2d 263 (2020).

- Because a fire chief's actions taken against certain fire department employees did not constitute stalking under O.C.G.A. § 16-5-90(a)(1), but were committed for the legitimate purpose of physical training, and arose during legitimate training activities, the issuance of a permanent restraining order against the fire chief for those activities amounted to an abuse of discretion. Pilcher v. Stribling, 282 Ga. 166, 647 S.E.2d 8 (2007).

Imposition of a stalking protective order against the former boyfriend was inappropriate under O.C.G.A. §§ 16-5-90(a)(1),16-5-94(e), and19-13-3(c) because the evidence admitted at the hearing was clearly insufficient to establish the necessary "pattern" of harassing and intimidating behavior against the former girlfriend. Even assuming that an incident in the parking lot constituted the requisite contact of an intimidating or harassing nature, the only other evidence presented was that the parties would sometimes be in the same place at the school, which was a place that both had the right to be. Ramsey v. Middleton, 310 Ga. App. 300, 713 S.E.2d 428 (2011).

Trial court abused the court's discretion by issuing a protective order against a lessee because a lessor did not meet the burden under O.C.G.A. §§ 16-5-94(e) and19-13-3(c) of showing that the lessee committed the offense of stalking, O.C.G.A. § 16-5-90(a)(1); other than the lessor's own testimony, the lessor offered no proof that the lessee and a former business associate were acting in concert against the lessor or that their alleged joint activities were of the type that would support a protective order based on the offense of stalking. Martin v. Woodyard, 313 Ga. App. 797, 723 S.E.2d 293 (2012).

Trial court's order continuing an ex parte temporary protective order against an ex-husband was reversed because the trial court lacked authority to extend the temporary protective order since the trial court failed to comply with the hearing requirements of O.C.G.A. § 19-13-3(c) in any substantive way as the court questioned the ex-wife briefly, but the ex-wife was not sworn in as a witness, and the ex-husband did not have the opportunity to cross-examine the wife. White v. Raines, 331 Ga. App. 853, 771 S.E.2d 507 (2015).

Trial court erred in issuing the protective order because the evidence did not establish that the action of the person who was the subject of the order constituted a pattern of harassing and intimidating behavior which placed the applicant in reasonable fear for the applicant's safety given that the applicant's own testimony was that the applicant was "uncomfortable" rather than in fear for the applicant's safety. Murphy v. O'Keefe, 348 Ga. App. 344, 822 S.E.2d 839 (2019).

- Trial court abused the court's discretion by granting a priest a stalking protective order against a former church organist as the priest never indicated fear for the priest's safety as a result of the former organist's disruptive and interfering behavior. Rather, the priest indicated weariness with regard to the former organist's behavior and that the behavior was interfering with the life of the parish, which was insufficient to justify the issuance of the protective order. Sinclair v. Daly, 295 Ga. App. 613, 672 S.E.2d 672 (2009).

- 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 erred in denying a South Carolina resident's motion to set aside a stalking permanent protective order issued against the resident. The Georgia court did not have personal jurisdiction over the nonresident under O.C.G.A. § 9-10-91 for stalking because the resident did not, in sending harassing emails from South Carolina, engage in conduct in Georgia. Huggins v. Boyd, 304 Ga. App. 563, 697 S.E.2d 253 (2010).

- Trial court did not abuse its discretion in awarding a resident $4,000.00 in attorney fees and requiring the neighbor to undergo a mental health evaluation as part of a protective order entered in favor of the resident against the neighbor. De Louis v. Sheppard, 277 Ga. App. 768, 627 S.E.2d 846 (2006).

- Statutory basis for an award of $700 attorney's fees against a stalker who consented to a protective order could only be O.C.G.A. § 16-5-94(d)(3); however, remand was required for an explanation of the underlying factual basis for the award as well as the actual costs and reasonableness of those fees. Brooks v. Hayden, 355 Ga. App. 171, 843 S.E.2d 594 (2020).

- Defendant's stalking convictions, based on violations of a permanent restraining order (PRO), were not invalid on grounds the PRO was issued by a magistrate judge, as the chief judge of superior court, as authorized by O.C.G.A. § 15-1-9.1(b)(2), had requested magistrates to assist the superior court by hearing petitions under the Georgia Stalking Statute, O.C.G.A. § 16-5-94. Seibert v. State, 294 Ga. App. 202, 670 S.E.2d 109 (2008).

- 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).

- O.C.G.A. § 16-5-94(d) authorized an award of costs and fees relating to a grant of a protective order (or approval of a consent agreement) designed to end conduct constituting stalking but did not authorize independent awards for costs and attorney fees or awards for appellate proceedings occurring subsequent to entry of order. Bishop v. Goins, 305 Ga. 310, 824 S.E.2d 369 (2019).

Georgia Court of Appeals erred in concluding that O.C.G.A. § 16-5-94(d)(3) permitted award of costs and attorney fees related to appellate proceedings occurring subsequent to entry of a protective order, and the judgment of that court was reversed. Bishop v. Goins, 305 Ga. 310, 824 S.E.2d 369 (2019).

- Given that the petition for a stalking temporary protective order (TPO) was dismissed before any order was entered, the trial court did not abuse the court's discretion in denying the respondent's motion for attorney fees under O.C.G.A. § 16-5-94(d). Durrance v. Schad, 345 Ga. App. 826, 815 S.E.2d 164 (2018).

Cited in Chan v. Ellis, 296 Ga. 838, 770 S.E.2d 851 (2015).

RESEARCH REFERENCES

ALR.

- Validity, construction, and application of state civil stalking statutes, 14 A.L.R.7th 4.