Part 3: Basic Procedure of Formal Hearing after Service of Ex Parte Petition
As set forth in Parts 1 and 2 of this four-part article, because cases involving Temporary Protective Orders (TPOs) in Georgia can have significant consequences for either party involved, each party – both the Petitioner and the Respondent -- should be familiar with the basic procedural mechanics of the TPO process.
As I stated in Part 2 of this article, one of the most significant aspects of a 'family violence' TPO in Georgia is that the process can permit law enforcement -- if authorized by the judge in the ex parte order the petitioner obtained without the respondent being present -- to remove a respondent from a household where the petitioner is also residing. In these instances, the respondent will literally be removed from the house with the assistance of law enforcement after he or she is given 10-15 minutes to gather up their personal belongings. If there are children involved, the respondent probably won't see or contact his or her children again until after the formal TPO hearing.
After the respondent is served with the TPO and given notice of the court date, the respondent and petitioner both appear in court for the formal hearing. At the hearing, the petitioner bears the usual civil burden of proof, requiring the petitioner to prove his or her allegations by a preponderance of the evidence (not beyond a reasonable doubt). The petitioner has to prove to the court that: (a) either an act of family violence or stalking was committed by the respondent; and (b) that the act(s) of family violence or stalking are likely to continue unless the court issues of a permanent (meaning 6-months or 12-months) protective order. There is no jury trial in a TPO, with all issues decided only by the judge presiding on the case (a 'bench trial').
The petitioner does not have any advantage in this formal hearing simply because he or she obtained the informal ex parte TPO. The court will only base its ruling only on the evidence actually presented. The manner and presentation of hearing is controlled by the Georgia rules of evidence, a complex set of laws (modeled on the federal rules of evidence since 2013) that should not be taken lightly by the TPO litigant. Bearing the burden of proof, the petitioner will start with the presentation of evidence, followed by the respondent. If the court needs to hear additional evidence, there can be a rebuttal case (by the petitioner) and sur-rebuttal (by the respondent). Either party can call witnesses and present documents or other exhibits (such as text messages and emails) but the presentation of the evidence must conform to the rules of evidence. If an entire case hinges on evidence, for example, from a third party witness or upon documents, this evidence will not be considered by the court unless the 'tender' of evidence follows the rules of evidence (hearsay, authentication, impeachment, prior acts of conduct, etc.).
If the TPO case requires a court to deal with issues involving the parties' children, support, payment of household expenses or division of property, the court will often 'bifurcate' the case to decide upon these other issues only after deciding whether the petitioner can meet his or her burden. If the petitioner cannot sustain his or her burden, then the case is dismissed and none of the secondary issues will be considered. If the petitioner does carry his or her burden of proof, then the TPO court will issue a permanent (6-month or 12-month) restraining order that will prevent the respondent from attempting to make any direct or indirect contact with the petitioner by any means. However, the court may authorize limited contact between the parties for a particular purpose (as when the parties need to arrange for the exchange of the children for visitation, for example).
Please note that when the parties appear without counsel, a judge will often try to manage its (sometimes lengthy) calendar by quickly resolving the TPO case. As a result, the unprepared TPO litigant may find himself or herself unable to adequately present or effectively communicate to the court the most germane and important facts and issues for the court to hear. If the evidence is not properly presented or if a court were to substitute its own impressions and inferences due to poorly-presented facts, then the entire TPO process might be compromised and the consequences unwarranted.
Since beginning my practice in Gwinnett County and around metro Atlanta in 1995, I have accumulated vast experience in handling TPO cases whether in representing the plaintiff (a.k.a. the "Petitioner") or the defendant (a.k.a. the "Respondent"). In earning its reputation for success in handling TPO cases in Gwinnett County and elsewhere in metro Atlanta and Georgia, Fox Firm, P.C. works hard for every single client to be prepared to prevail. If you are a party to a TPO case and find that the smartest way to deal with the question of a court order for protection is to hire the personal protection of a committed and experienced attorney, please contact Fox Firm, P.C. at dfox@foxfirmpc.com or call us at 770.277.4883.