- The respondent committed an act of family violence in the past such as battery, assault, unlawful restraint, criminal trespass, stalking, criminal damage to property, or a felony.
- The respondent is reasonably likely to commit an act of family violence in the future.
The respondent would be trying to prove that these events did not occur or that it is unlikely that an act of family violence will occur again. Or, alternatively, if the respondent filed a counterclaim, that those events occurred. A counterclaim has the same burden of proof as the original petition.
If the petitioner and respondent are unable to consent to the TPO and the petitioner chooses to have a hearing then the following information will help the respective parties establish his/her case for a TPO at the hearing.
Petitioner has the burden to prove to the court, to a preponderance of the evidence, that it should grant the TPO. In other words, it is up to the petitioner to convince the judge that the respondent acted violently towards the petitioner, caused petitioner to reasonably fear for her/his safety, and that respondent may reasonably be expected to act violently again.
Normally, most of the same legal issues apply to both parties. The parties are just on the opposite side of the proof. Alternatively, the respondent may try to prove that the petitioner was violent, or the cause of the violence.
The victim, or petitioner, merely goes first. During the victim's testimony, the victim should provide the following:
State the victim's name, the batterer's name, and their relationship.
The relationship between the victim and the batterer must be one of the following:
- Past or present spouses.
- Parents of the same child.
- Parent and child.
- Step-parent and step-child.
- Foster parent and foster child.
- Persons living or formerly living in the same house.
If jurisdiction is an issue, state the batterer's address including the county. Start with describing the most recent threat or act of violence.
- Date and time.
- Who was present.
- The victim cannot testify to what other people saw or heard but witness can be asked to testify. You should subpoena your witnesses to court. Subpoenas are available in the clerk's office.
- What was said by the victim and the respondent.
- Describe physical contact.
- Describe bruises, injuries, or property damage caused by the physical contact.
- If pictures were taken, provide the following information then you can show the pictures to the judge.
- Who took the pictures.
- When they were taken.
- How you got possession of the pictures.
- Whether the pictures are accurate.
- If you went to the hospital, medical records have to be certified in order to show them to the judge.
- Contact the hospital you visited to obtain a certified copy of your medical records.
- Describe two other threats or acts of violence that happened close in time to the most recent act or threat of violence described above.
- Provide the same information listed above for each incident.
- Go through all the facts connected with the factors and history of violence that you listed on your petition.
- Tell the judge why you think you need a TPO.
Police officer's testimony: If the police was called and you want the officer to testify to what he/she saw then you have to give the officer a witness subpoena signed by the clerk at the courthouse. See the section on subpoenas.
- Make sure the officer receives the witness subpoena at least 24 hours before the hearing.
- Also, give the officer a subpoena for the production of documents if you want him to bring the pictures he took.
- In order to give the pictures to the judge, the officer has to provide the same information about the pictures, listed above, as the victim would if she/he were trying to show the pictures to the judge.
- The police report cannot be given to the judge. It is considered hearsay and inadmissible.
- Ask the officer to describe what the officer saw and heard.
- Did he conclude whether a violent act had occurred?
- Who did he determine to be the primary aggressor?
Witness testimony should include the following:
- Name and relationship to the parties.
- Date she/he witnessed violence, injuries, or property damage.
- Describe what she/he witnessed.
Tips - Questioning Witnesses on the Stand:
- Witnesses can only testify to matters of personal knowledge. For example, Witness X cannot testify that Jane Doe told witness X that Jane Doe saw the respondent push the petitioner. However, Jane Doe can testify to what she saw.
- You cannot ask your own witness leading questions. Leading questions are questions that strongly suggest an answer or likely to supply a false memory. For example, instead of asking the witness did you see John Doe hit Jane Doe on March 10, 2003, ask the witness what did you see on March 10, 2003.
- Petitioner and respondent should complete the Domestic Relations Financial Affidavit, which can be obtained from the Clerk of Superior Court (See also forms on this website, MAG 60-44, Domestic Relations Affidavit).
- The financial affidavit must be notarized. The attendant at the information desk when you first come into the courthouse can notarize the affidavit. You will need picture identification.
- Information must be accurate. Do NOT guess!
- Bring check stubs, receipts, and any documentation you have to verify the financial information you provided if you are questioned.
- Bring the original affidavit and two copies. The petitioner should give the original to the judge, one copy to the respondent, and keep one for your records.
If both parties are seeking custody of the children, then the party seeking custody also needs to show the judge that she/he would be the more stable caretaker.
During the testimony, the parties should provide the following additional information:
- Whether either party has committed an act of family violence towards the children.
- If so, tell the judge when the incident occurred and what happened.
- Whether either parent has a history of alcohol or drug abuse.
- Whether you can provide for the children financially.
- Who was the primary caretaker of the children in the past.
- Provide information that will support who was the primary caretaker such as who transported the children to and from daycare, who attended school events and parent teacher conferences, and who provided the children's daily meals.
- Describe your living arrangements (how many bedrooms, whether you have a roommate, etc.).
- Tell the judge about any measures you have taken to address the children's special needs such as tutoring or therapy.
If any of your witness's have personal knowledge of the information listed above or additional information that you feel will help show the judge that you are the more stable parent, then include those questions during witness testimony.
If you are seeking child support, you also complete the following:
- MAG60-42, Child Support Computation, prior to your assigned court date.
- As of January 1, 2007, Child Support Computation REQUIRES the use of the internet and/or the use of an electronic worksheet downloaded to a computer. Computer access is available for 'free' at any branch of the Gwinnett Library system or at the Gwinnett County Law Library, Gwinnett Justice and Administration Center, 75 Langley Drive, Lawrenceville, GA 30046.
Parties and/or their lawyers should go to http://www.georgiacourts.org/csc to find the proper electronic worksheet. Parents should use The Guided Electronic Worksheet. Lawyers, mediators, and other professionals should use The Practitioner's Electronic Worksheet. Anyone can useThe Downloadable Electronic Worksheet. Alternatively, go to https://www.services.georgia.gov/dhr/cspp/do/public/SupportCalc to find your proper electronic worksheet.
I cannot afford to hire an attorney. Are there any social agencies which can help me?
There are two primary organizations in Gwinnett County which assist family violence victims with information and legal assistance. The two organizations are:
-
Partnership Against Domestic Violence
ATTN. Community Outreach
P.O. Box 170225
Atlanta, GA 30317
404.870.9600 (Administrative Office)
404.873.1766 V/TTY (Fulton Crisis Line)
770.963.9799 V/TTY (Gwinnett Crisis Line)
They have a wealth of information on their website, http://www.padv.org/index.htm. If you are a victim of domestic violence and would like assistance either completing this petition, having someone with you during your second family violence hearing, or accessing legal services, please contact the Legal Services Coordinator with Partnership Against Domestic Violence at the Crisis Line 770-963-9799 (Sé habla español).
This organization is a Project of the Gwinnett office of Atlanta Legal Aid and also has information on their website, which is http://www.atlantalegalaid.org.
The Project provides free assistance, including representation to victims of family violence in actions to obtain, enforce or modify temporary protective orders. In addition to providing representation to victims of family violence free of charge, the Project can provide a free consultation with an attorney with whom victims can discuss their case and teaches victims how to prepare for the temporary protective order hearing if the Project is not able to offer representation.
To be eligible you must be a victim of recent violence or recently threatened with violence.
To apply for assistance, contact them at (678)376-9844. Due to limited resources, they may not be able to provide assistance to everyone who applies. Applications are accepted on a first come, first served basis, and therefore it is strongly recommended that you contact them within 24 hours of filing your petition for a protective order. All applications are subject to approval.
You may also call (800-33-HAVEN) to determine if there are any other new local services available.
My case involves child support. Are there any other forms that I must prepare for our trial?
Yes, parties seeking temporary child support must complete three (3) additional forms prior to your hearing date:
- MAG 60-42, Child Support Computation; (available on this website)
- MAG 60-44 Domestic Relations Affidavit form; (available on this website)
- And, the state electronic worksheet set forth below. https://www.services.georgia.gov/dhr/cspp/do/public/SupportCalc.
Both of these forms are available on this website or from the clerk’s office.
As of January 1, 2007, Child Support Computation REQUIRES the use of the internet and/or the use of an electronic worksheet downloaded to a computer. Computer access is available for free at any branch of the Gwinnett Library system or at the Gwinnett County Law Library, Gwinnett Justice & Administration Center, 75 Langley Drive, Lawrenceville, GA 30046.
Parties and/or their lawyers should go to http://www.georgiacourts.org/csc/ to find the proper electronic worksheet. Parents should use The Guided Electronic Worksheet . Lawyers, Mediators, and other Professionals should use The Practitioner Electronic Worksheet. Anyone can use The Downloadable Electronic Worksheet . Alternatively, go to https://www.services.georgia.gov/dhr/cspp/do/public/SupportCalc. to find your proper electronic worksheet.
In any contested case, the parties shall submit to the Court their proposed findings regarding the gross incomes of the father and the mother, the presence or absence of special circumstances, and the amount of child support. This may be accomplished through the use of the form CHILD SUPPORT COMPUTATION , available from the Clerk of Court OR through the use of the appropriate electronic worksheet(s).
Victims of family violence may seek assistance on completing this form from the Legal Services Coordinator with Partnership Against Domestic Violence at pager 404-273-6035. Also, a representative of the Partnership Against Domestic Violence may be present at the court at the time of filing so please ask the clerk of court if a representative is immediately available to consult with you.
How long will the protective order be in effect?
Temporary Protective Orders will remain in effect for a period of 6 months - 12 months. However, upon the motion of a petitioner and notice to the respondent and after a hearing: (all of which needs to be completed within the effective date of the original Temporary Protective Order), the court in its discretion may convert a temporary order granted under this Code section to a three (3) year order or a permanent order.
In what county do I file for protection under the family violence act?
If the defendant is a resident of the state of Georgia, a family violence petition must be filed in the county where the defendant resides. You must file all family violence actions filed against Georgia residents in the county where the Georgia resident resides.
Only if the defendant is a non-resident of the state of Georgia do the following two provisions apply:
- For a Georgia court to have jurisidiction, the defendant has to have committed an act of family violence within the State of Georgia OR has committed an act of family violence outside of the State of Georgia having an effect inside the State of Georgia.
- To file an action against a non-resident in the Superior Court of Gwinnett County, GA, the Petitioner must be a resident of Gwinnett County, Georgia; OR, the Petitioner is a resident of the State of Georgia and the act of family violence committed by the defendant occurred in Gwinnett County.
Who will have copies of the temporary protective order?
The parties will be provided copies at the conclusion of the hearing, the Superior Court Clerk's Office will retain the original, and the Sheriff's Department will retain a copy of the Temporary Protective Order as long as it remains in effect.
The victim in the case should consider making additional copies to keep at home, work, with family members and within the victim's automobile. Copies should be readily available to present to law enforcement if a violation of the protective order occurs.
Additionally, the Clerk of Court will transmit a copy of the protective order to the Family Violence Protective Order Registry.
What help and protections can a temporary protective order provide?
The Temporary Protective Order may:
- Direct a party to stop acts of family violence;
- Grant to a spouse possession of the residence or household of the parties and exclude the other spouse from the residence or household;
- Require a party to provide suitable alternate housing for a spouse and his or her children;
- Award temporary custody of minor children and establish temporary visitation rights;
- Order the eviction of a party from the residence or household and order assistance to the victim in returning to it;
- Order assistance in retrieving personal property of the victim if the respondent's eviction has not been ordered;
- Order either party to make payments for the support of a minor child as required by law;
- Order either party to make payments for the support of a spouse as required by law;
- Provide for possession of personal property of the parties;
- Order a party to refrain from harassing or interfering with the other;
- Award costs and attorney's fees to either party;
- and Order either or all parties to receive appropriate psychiatric or psychological services as a further measure to prevent the recurrence of family violence.
I have moved, so who will enforce the temporary protective order?
The Temporary Protective Order is applicable and effective throughout the State of Georgia. It is 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.
What happens after I get my copy of the temporary protective order?
Within ten days of the filing of the petition under this article or as soon as practical thereafter, but in no case later than 30 days after the filing of the petition, a hearing (where both petitioner and defendant may be present heard) will 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, the petition shall stand dismissed unless the parties otherwise agree.
What if I need to file for family violence protection after normal business hours?
You are not able to file for a family violence protective order after normal business hours. However there are alternatives available to you.
If a crime is being committed, or has been committed, you should call the police for assistance.
You should immediately remove yourself from the household and stay with a relative, friend, or neighbor or other undisclosed location until you can file for protection during regular business hours.
You may contact various social agencies for temporary lodging until you can file a petition during regular business hours. You can call the Partnership Against Domestic Violence, 770-963-9799, Shelter Hotline, 800-33-HAVEN (334-2836) for help or referrals.
How much does it cost to file a petition for relief under the family violence act?
There is no cost to file a petition for relief under the Family Violence Act.
What happens when I file for a temporary protective order?
The petition must first be filed with the clerk of superior court in the correct county.
The clerk will "docket" the case, which means to enter the essential data onto the court's docket and to assign a case number.
The petition, together with the petitioner is then taken before the assigned judge.
The judge will first review the written petition.
The judge will then administer an oath to the petitioner and hear sworn testimony about the case. The judge will most likely ask the petitioner questions under oath.
The judge must make the legal determination that:
- there is probable cause to believe that one of the specified acts of family violence, as exactly defined by the statute has occurred; and,
- that family violence is reasonably likely to occur in the future.
If the judge determines that there is presently insufficient evidence to support EITHER a finding that an act of family violence as determined by statute has occurred, OR that it has not been proven likely that family violence will occur in the future, the judge must immediately dismiss the petition.
If the judge does find probable cause for these two essential elements, then the judge will immediately issue a temporary protective order in favor of the petitioner.
The file will be returned to the clerk of court for the docketing of either the dismissal order or the issuance of a temporary protective order.
If a protective order has been issued, the petitioner will then be directed to the Family Violence Unit of the Gwinnett County Sheriff's Department so that the petition and the protective order can be promptly served upon the defendant.
What is family violence?
19-13-1. "Family violence" defined.
As used in this article, the term "family violence" means the occurrence of one or more of the following acts between past or present spouses, persons who are parents of the same child, parents and children, stepparents and stepchildren, foster parents and foster children, or other persons living or formerly living in the same household:
- Any felony
- Commission of offenses of battery, simple battery, simple assault, assault, stalking, criminal damage to property, unlawful restraint, or criminal trespass.
The term "family violence" shall not be deemed to include reasonable discipline administered by a parent to a child in the form of corporal punishment, restraint, or detention.
The criminal acts alleged above have the following essential elements:
- Simple Battery: See O.C.G.A. ' 16-5-23 -- to cause physical harm; make contact of an insulting or provoking nature.
- Battery See O.C.G.A. ' 16-5-23.1 -- to cause substantial physical harm; to cause visible bodily harm.
- Aggravated Assault. See O.C.G.A. ' 16-5-21 -- an assault with :(1) an intent to murder, to rape or rob; (2) a deadly weapon; or(3) with any object when used offensively against a person is likely to or actually does result in bodily injury.
- Criminal Trespass. See O.C.G.A. ' 16-7-21 -- to knowingly and without authority enter upon the land of another person, vehicle, etc.: (1) for an unlawful purpose; or (2) after receiving, prior to such entry, notice from the owner, rightful occupant that such entry is forbidden; (3) to remain on the above described after receiving notice from the owner, rightful occupant, authorized agent to depart. (This code section may not apply in some instances between spouses who each have rights of ownership, etc., in their mutual property.)
- Criminal Damage to Property:-- See O.C.G.A. ' 16-7-22 -- to knowingly and without authority interfere with any property in a manner so as to endanger human life; intentionally damage any property of another person with consent and the damages exceeds $500.00. recklessly or intentionally by means of fire or explosive damage the property of another person.
- Unlawful Restraint-- See O.C.G.A. ' 16-5-41 -- an act in violation of the personal liberty of another which arrests, confines or detains a person without legal authority.
- Stalking-- See O.C.G.A. ' 16-5-90 -- to follow, place under surveillance, or contact another person at or about a place or places without the consent of the other person for the purpose of harassing and intimidating the other person -- "place or places" shall include any public or private property occupied by the victim other than the residence of the Respondent -- cannot be the property of the Respondent -- "harassing and intimidating" shall mean a knowing course of conduct directed at a specific person which causes emotional distress by placing such person in reasonable fear to himself/herself or a member of his/her immediate family.
- Aggravated Stalking -- See O.C.G.A. ' 16-5-91 when such person violation of a temporary restraining order, preliminary injunction, or permanent injunction or condition of pretrial release, condition of probation, or condition of parole in effect prohibiting the behavior described herein follows, places under surveillance, or contacts another person at or about a place or places without the consent of the other person for the purpose of harassing and intimidating the other person.
- A felony -- the commission of a crime punishable by more than one year incarceration and is the type of felony which would support the allegation that family violence has occurred in the past and is reasonably likely to occur in the future.
How does the Gwinnett County Sheriff's Department help me with my family violence case?
Once you have obtained a Temporary Protective Order (TPO) under the Family Violence Act, the Sheriff's Department has the responsibility of executing the order by serving a copy of the order upon the respondent (person who is alleged to have committed the act of family violence). The efforts to locate the respondent will begin during the shift on which the order is received, and the Sheriff's Department will continue to attempt to serve the order until they are successful, or the time period for the order expires. If you have additional information that can assist the Sheriff's Department in locating the respondent, please contact us as soon as possible at (770) 822-8200. The deputies have the responsibility of notifying the respondent of the existence of the order, and will read the order aloud to the respondent. This assures us that the respondent not only receives the order, but also is aware of its contents.
IF DIRECTED BY THE ORDER, the Sheriff's Department will evict the respondent from the residence where you both are residing. Under the supervision of a deputy sheriff, the respondent is allowed to gather enough personal effects (i.e. clothing, toiletries, etc.) to sustain them until the hearing date which is set in your order. The date is normally within 10 days as prescribed by law. When the respondent is served at a location other than the place from which he or she is to be evicted, then arrangements will be made for a mutually convenient time for the Sheriff's Department and the respondent to retrieve the needed personal belongings.
IF DIRECTED BY THE ORDER, the deputies may retrieve custody of children or certain belongings from the respondent and then turn them over to you, the petitioner. Once the order is served upon the respondent, a copy of that order will remain on file in the Sheriff's Department as well as the Police Department. The existence of your order can be verified 24 hours a day during the time period that your order is in effect (normally 6 months). If you are having the respondent evicted from the residence, if is important for you to verify with the Sheriff's Department that the eviction has taken place BEFORE you return to the residence. This is for your safety. You may verify this information by contacting the Sheriff's Department at (770) 822-8200. If the respondent has been evicted from the residence, and later returns before the expiration of the Temporary Protective Order, you should first contact the Gwinnett County Police Department by dialing 911. Inform the operator that you have a Temporary Protective Order, and that you need a police officer. There are more police officers than deputy Sheriffs in Gwinnett County, and a police officer can usually respond to your call for assistance sooner. A deputy sheriff will also respond to your call if available and needed. Below is a listing of the telephone numbers you should keep available:
Gwinnett County Police Department
Emergency Response Number 911
Gwinnett County Sheriff's Department
Main Telephone Number (770) 822-3100
Warrant Division (770) 822-3110
Civil Process (Monday-Friday 8 am till 5 pm) (770) 822-8200 (After 5 pm) (770) 822-8210
Other Important Telephone Numbers
The Partnership Against Domestic Violence (404) 870-9600; 770.963.9799; Statewide Domestic Violence Hotline 800.33HAVEN
Who can file a petition for a temporary protective order? i.e. restraining orders.
Any person who is not a minor may seek relief under the Family Violence Act by filing, in the Superior Court Clerk's Office between the hours of 8 a.m. and 5 p.m, a petition with the superior court alleging one or more acts of family violence. Any person who is not a minor may also seek relief on behalf of a minor by filing such a petition.
