Domestic violence temporary protective orders are an important area of law that legitimately protects victims of domestic violence in the State of Georgia. However, we have seen situations where one party will use domestic violence temporary protective orders as a strategy rather than protection, often combined with a complaint for divorce in an unfair attempt to gain an advantage for a child custody case in divorce court.
When this does happen, how do you fight back or defend from this tactic? You need to know the law and fight on the elements of the law that comprise a family violence order.
The law is two-fold:
- The relationship test
- The violence test
Each part of the law will need to be considered by the courts. Let’s break them down.
The Relationship Test
The relationship test limits who can file for a domestic abuse family violence protection order in the State of Georgia. There are five relationships:
- Violence between husband and wives (spouses)
- Violence between you and the other parent of your child
- Violence between you and your parents, stepparents/foster parents
- Violence between you and your children, step-children, foster children
- Violence between you and a person who is living or formerly lives in the same household
If a party does not fit into any of these relationships, they cannot obtain a family violence order.
The Violence Test
To obtain a domestic abuse family violence protective order in the State of Georgia, a specific allegation of abuse is necessary. Not just any threat or annoyance will qualify. The acts of violence that will qualify are as follows:
- Is the act of felony? A crime defined by statute as a felony such as homicide, attempted homicide, rape, arson, etc.
- Is the act of battery or simple battery as defined by Georgia statute? This is when a person intentionally and wrongfully touches another person or causes physical harm to another.
- Is the act an assault or simple assault as defined by Georgia statute? This is when a person attempts to injure another or put another person in reasonable fear of being hurt.
- Is the act stalking? This is when a person follows or contacts another to harass or intimidate.
- Is the act criminal damage to property? This is when a person illegally damages property.
- Is the act unlawful restraint? This is when a person illegally confines or detains another person or unlawfully arrests a person.
- Is the act criminal trespass? This happens when a person illegally damages property valued at $500 or less or when a person knowingly or with malice interferes with the property of another, or a person comes onto the property without permission to do so.
Know Your Rights
The way to defend and win these cases is to hold the person bringing the claim that they need a family violence order against you to the law and put them to the proof. Where is the act of violence? Where is the felony? Where is the criminal trespass? We see many family violence ex parte orders issued, and the person alleged to be a domestic abuser concedes to the claim because they are unsure how to respond. This puts that person at an unfair disadvantage in the subsequently filed divorce complaint, particularly regarding child custody issues.
To avoid this, we fight back by defending the allegations of the ex parte family violence order on the statute’s elements and putting the other party to the proof. We find that when these family violence orders are actually tried with real evidence, based on the elements, they fail. We win and get the domestic abuse family violence order dismissed, and we take this momentum into fighting the divorce and child custody issues. It literally changes lives being able to successfully defend against the abuse of domestic abuse family violence orders.
Do you want to know more about domestic violence temporary protective orders?
We are Georgia divorce and child custody attorneys. This is all we have done since 1995. We can help. If you need help or have any questions, we would be happy to speak with you via email, text, or phone. Check us out at www.shawlaw.com
Shaw Law Firm, PC
(770) 594-8309 (phone or text)