07/03/2017
Noel H Benedict & Associates We are contacted frequently by people in crisis who are facing a court mandated Family Violence Hearing. Potential clients ask whether they can handle their own cases and whether an attorney is really necessary. That is an excellent question, and in the case of family violence, the answer is definitely yes. Let me explain:
A Family Violence Hearing occurs after a spouse or domestic partner files a petition in Superior Court claiming that he or she has been a victim of acts of family violence as defined by Georgia law. Family Violence Hearings are expedited hearings. The legal basis for an individual in Georgia seeking protection from family violence is found in O.C.G.A. § 19-13-3 and a description of what the Courts can do to remedy a problem of family violence is found in O.C.G.A. § 19-13-4.
One central feature of these hearings is they are held very quickly. The hearing in a family violence case by statute is to occur within ten days of the date the petition is filed, or as soon as is practical thereafter, but not beyond thirty days after the petition has been filed.(O.C.G.A. § 19-13-3 (c). In Gwinnett County these hearings are usually held within ten days after a party has come to the Court and told the judge his or her version of what has occurred.) Judges’ calendars, or schedules, are usually quite full. The TPO (Temporary Protective Order) cases may be gone through quite rapidly in order to clear the calendar for more complex cases. If a Defendant/Respondent shows up without representation by an attorney and is unprepared or does not understand the rules of evidence that by law have to be complied with, the Defendant/ Respondent will not be able to present the important facts or the pertinent issues involved. Under these circumstances, the judge may not have the opportunity to have all the facts and thus may make a ruling which is not favorable to the Defendant.
As a practical matter, what this means is that the Defendant and the Defendant’s attorney in a family violence case have very little time to figure out exactly what the Complaint is and what evidence is necessary for the hearing.
At the initial hearing, the judge hears the Complaint and issues a restraining order based upon only one side—that is, the Petitioner’s explanation of what has happened—and sets it for an immediate hearing. There is no jury of your peers in a Family Violence Hearing—the final decision is entirely in the hands of a judge. The Court, the judge, must determine if an act of family violence will occur in the future without a protect order. The hearing will continue for the purpose of gathering evidence for the “specifics” in an Order. Specifics include questions of child custody, visitation if there are children, occupancy of the marital home or other dwelling, child support or spousal support, attorney’s fees, referral to psychological services, or other measures to prevent family violence. See O.C.G.A§ 19-13-4.
Hiring an attorney is important, as these hearings may actually result in lasting consequences of lengthy duration. Therefore, it is imperative to have an experienced attorney to guide you through the court system. If the judge agrees with the petitioner’s position, a Protective Order will be issued for either six months duration or twelve months duration. If a Protection Order is issued, and you are the Respondent, this means that you are not able to contact or communicate with the petitioner or return home for the duration of the Order!
When the Court is determining whether or not an act of family violence has occurred, it is looking at a specific statutory definition of family violence found in O.C.G.A§ 19-13-1. That statute first defines who is a member of a “family” for the purpose of the statute. It then defines acts of family violence. At the initial hearing, the Court first has to determine that the relationship between the Plaintiff and the Defendant is within that group of people defined in statute O.C.G.A§ 19-13-1. Then it has to determine whether one of the prohibited acts occurred. The term “family,” that is, people to whom the statute applies, is fairly broad; and it includes past or present spouses, stepchildren, foster parents and foster children, or other person(s) living or formerly living in the same household. The acts that are forbidden by statute in O.C.G.A§ 19-13-1 are any felony or the following misdemeanors: battery, assault, stalking, criminal damage to property, unlawful restraint, or criminal trespass.
While this sounds simple enough, in individual cases it can be a difficult question as to whether the Plaintiff and the Defendant are within the group of people intended to be covered by the family violence statute, or whether any particular act is within the range of prohibited acts. It is at this point in the hearing that an attorney becomes imperative. Chances are low that an individual would know how to argue whether he/she fits the definition of the people to be protected by, or subject to, the family violence statute, which can be a difficult technical point of law in some cases. The same can be said for determining whether or not acts of violence occurred. For example, screaming and name calling are not listed among the acts that are required before the family violence statutes can come into play. But it is possible in a given situation that the words used while screaming and yelling could amount to assault, which is prohibited conduct within the family violence statute. Once again, what sounds relatively simple can become a technical point of law in any given case, requiring an attorney to present the evidence. If the two parties are not living in the same house during the act of family violence, there is a chance that the court action has been brought in the wrong county. In Georgia, the county with jurisdiction in the matter is the county where the Defendant/Respondent resides, unless the Defendant/Respondent is not a Georgia resident O.C.G.A§ 19-13-2.
Repercussions in family violence cases can and do go far beyond just the hearing itself and the two individuals involved in the relationship. As the Defendant, a ruling can affect your future employment, your relationship with your children, and your right to carry a weapon. If the judge finds an act of family violence has occurred and finds the need for entry of a family violence order, employers tend to pick up the information; and people have lost their jobs or lost the opportunity for a job because of a fight occurring that ended in a court order. The right to have a Georgia Concealed Carry Permit is affected by a family violence unfavorable ruling, as is the right to purchase a firearm from a federally licensed fi****ms dealer. Therefore, for the Defendant, a family violence hearing is not just a way to temporarily resolve some issue between the Plaintiff and the Defendant. It can impact areas beyond the relationship that led to the Order.
Some very technical defenses may need to be undertaken to lessen the severity of the charges or negate them entirely. This is not the time to try to represent yourself.
