2021 Georgia Code
Title 19 - Domestic Relations
Chapter 13 - Family Violence
Article 1 - Granting of Relief by Superior Courts
§ 19-13-3. Petition Seeking Relief From Family Violence; Temporary Relief Ex Parte; Hearing; Dismissal of Petition Upon Failure to Hold Hearing; Procedural Advice for Victims; Delays

1. A person who is not a minor may seek relief under this article by filing a petition with the superior court alleging one or more acts of family violence. A person who is not a minor may also seek relief on behalf of a minor by filing such a petition.
2. Upon the filing of a verified petition in which the petitioner alleges with specific facts that probable cause exists to establish that family violence 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 violence. If the court issues an ex parte order, a copy of the order shall be immediately furnished to the petitioner and such order shall remain in effect until the court issues an order dismissing such order or a hearing as set forth in subsection (c) of this Code section occurs, whichever occurs first.
3. Within ten days of the filing of the petition under this article or as soon as practical thereafter, but not later than 30 days after the filing of the petition, a hearing shall be held at which the petitioner must prove the allegations of the petition by a preponderance of the evidence as in other civil cases. In the event a hearing cannot be scheduled within the county where the case is pending within the 30 day period the same shall be scheduled and heard within any other county of that circuit. If a hearing is not held within 30 days of the filing of the petition, the petition shall stand dismissed unless the parties otherwise agree.
4. Family violence shelter or social service agency staff members designated by the court may explain to all victims not represented by counsel the procedures for filling out and filing all forms and pleadings necessary for the presentation of their petition to the court. The clerk of the court may provide forms for petitions and pleadings to victims of family violence and to any other person designated by the superior court pursuant to this Code section as authorized to advise victims on filling out and filing such petitions and pleadings. The clerk shall not be required to provide assistance to persons in completing such forms or in presenting their case to the court. Any assistance provided pursuant to this Code section shall be performed without cost to the petitioners. The performance of such assistance shall not constitute the practice of law as defined in Code Section 15-19-51.
5. If the court finds a party is avoiding service to delay a hearing, the court may delay dismissal of the petition for an additional 30 days.

(Ga. L. 1981, p. 880, § 3; Ga. L. 1982, p. 3, § 19; Ga. L. 1984, p. 542, § 1; Ga. L. 1985, p. 983, § 1; Ga. L. 1988, p. 320, § 3; Ga. L. 1988, p. 1248, § 1; Ga. L. 1994, p. 1270, § 7; Ga. L. 1996, p. 883, § 5; Ga. L. 2018, p. 969, § 1/HB 834.)

The 2018 amendment, effective July 1, 2018, added "and such order shall remain in effect until the court issues an order dismissing such order or a hearing as set forth in subsection (c) of this Code section occurs, whichever occurs first" at the end of the last sentence of subsection (b); in subsection (c), substituted "but not later" for "but in no case later" in the first sentence, and inserted "of the filing of the petition" in the middle of the last sentence; and added subsection (d).

- Reporting of instances of child abuse, § 19-7-5.

Maintenance of child abuse and deprivation records, § 49-5-40 et seq.

- Pursuant to Code Section 28-9-5, in 2018, subsection (d), as added by Ga. L. 2018, p. 969, § 1/HB 834, was redesignated as subsection (e), and in subsection (e), "court" was substituted for "Court" twice.

- For article citing developments in Georgia juvenile court practice and procedure from mid-1980 through mid-1981, see 33 Mercer L. Rev. 167 (1981). For article, "Gender and Justice in the Courts: A Report to the Supreme Court of Georgia by the Commission on Gender Bias in the Judicial System," see 8 Ga. St. U.L. Rev. 539 (1992). For survey article on domestic relations law, see 60 Mercer L. Rev. 121 (2008). For article on the 2018 amendment of this Code section, see 35 Ga. St. U.L. Rev. 155 (2018). For annual survey on real property law, see 70 Mercer L. Rev. 209 (2018). 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

Failure to comply with hearing requirements.

- 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).

Protective order imposed against an ex-husband was reversed because after the court deadlines were suspended, tolled or extended during a judicial emergency due to inclement weather, expiration of a 30-day period to hold a hearing was September 25, as opposed to September 27, when the hearing was held, and since the hearing was not held within 30 days of filing the petition, the petition should have been dismissed. Smith v. Smith, 350 Ga. App. 647, 829 S.E.2d 886 (2019).

- Trial court erred in finding that a guardian proved by a preponderance of the evidence, as required under O.C.G.A. § 19-13-3(a), that a mother committed an act of family violence pursuant to O.C.G.A. § 19-13-1 as there was insufficient evidence that the mother committed an act of violence, specifically simple battery in violation of O.C.G.A. § 16-5-23, as opposed to administering reasonable discipline in the form of corporal punishment, as O.C.G.A. § 16-5-23 specifically exempted corporal punishment from the definition of battery, and the appellate court determined after considering O.C.G.A. §§ 16-3-20 and20-2-731 that the alleged action of the mother in slapping her daughter did not rise to the level of unreasonable discipline. Buchheit v. Stinson, 260 Ga. App. 450, 579 S.E.2d 853 (2003).

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).

- Appellate court found that under O.C.G.A. § 19-13-3 there was no requirement that any past act of family violence alleged in the petition be "reasonably recent." By requiring the wife to show a "reasonably recent" act of family violence by the husband, the court below abused the court's discretion. Lewis v. Lewis, 316 Ga. App. 67, 728 S.E.2d 741 (2012).

- When an attorney was retained in a case being heard on an accelerated docket under the Family Violence Act, O.C.G.A. § 19-13-1 et seq., and promptly filed a conflict letter with the trial court advising the court that the attorney would be in another court at the time scheduled for a hearing in the case in which the attorney was retained, and followed up with the trial court on the day of the hearing regarding the attorney's general availability, it was an abuse of discretion for the trial court to refuse to honor the conflict letter because it was not filed seven days in advance of the hearing, as this part of the rule was explicitly an "expectation," which took into account that it was not always possible to file such a letter seven days in advance of a hearing, especially in cases being heard on an accelerated docket, and there was no evidence that the opposing party would have been prejudiced by a brief delay. Foster v. Gidewon, 280 Ga. 21, 622 S.E.2d 357 (2005).

Protective order under O.C.G.A. § 16-5-94. - While a preponderance of the evidence supported issuance of a protective order against a victim's sister-in-law, specifically, that the latter stalked the former, threatening violence for the purpose of harassing and intimidating the latter, the superior court could not prohibit the sister-in-law from owning or possessing a firearm for the duration of the order, or prohibit the sister-in-law from contacting immediate family members when the victim was not present. Rawcliffe v. Rawcliffe, 283 Ga. App. 264, 641 S.E.2d 255 (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).

- 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).

- Because a fire chief's actions taken against certain fire department employees did not constitute stalking by a preponderance of the evidence 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).

- Trial court abused the court's discretion in a family violence protective order proceeding by prohibiting the defendant from cross-examining the victim because O.C.G.A. § 15-19-51 did not prohibit an individual proceeding pro se from representing themselves and employing their right to a thorough and sifting cross-examination of a witness called against them. Jha v. Menkee, 352 Ga. App. 81, 833 S.E.2d 759 (2019).

- 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); Anderson v. Mergenhagen, 283 Ga. App. 546, 642 S.E.2d 105 (2007); Perlman v. Perlman, 318 Ga. App. 731, 734 S.E.2d 560 (2012).

OPINIONS OF THE ATTORNEY GENERAL

Divorce action combined with petition for relief under Family Violence Act.

- Petitions for relief under the Family Violence Act, O.C.G.A. § 19-13-1 et seq., and petitions for divorce may be combined in one action; however, the procedures governing the divorce action must comply with the Civil Practice Act, O.C.G.A. Ch. 11, T. 9. Furthermore, the filing fees for such a combination action would be governed by the general civil action filing fees provisions; only if a petition for relief under the Family Violence Act, O.C.G.A. § 19-13-1 et seq., is filed separately would the statutory lesser filing fee be applicable. 1995 Op. Att'y Gen. No. U95-7.

- O.C.G.A. § 15-6-77 (b)(1) and (b)(2), which provides that the total cost for all services rendered by the clerk of superior court in civil cases shall be either $40 or $55, should be construed together with, and does not repeal, O.C.G.A. § 19-13-3, which provides for a $16 filing fee for petitions filed under the Family Violence Act, O.C.G.A. § 19-13-1 et seq. 1988 Op. Att'y Gen. No. U88-11.

One-dollar fees for the clerks' and sheriffs' retirement funds should be charged in addition to the filing fees for a petition filed under the Family Violence Act, O.C.G.A. § 19-13-1 et seq. 1988 Op. Att'y Gen. No. U88-11.

If service of process is necessary, the sheriff's $20 fee should be imposed in addition to the $16 filing fee under the Family Violence Act, O.C.G.A. § 19-13-1 et seq. 1988 Op. Att'y Gen. No. U88-11.

Clerk of the superior court would be authorized to collect costs in support of county law libraries as authorized by the chief judge in any action filed under the Family Violence Act, O.C.G.A. § 19-13-1 et seq. 1988 Op. Att'y Gen. No. U88-11.

RESEARCH REFERENCES

C.J.S.

- Domestic Abuse and Violence, § 4 et seq.