Temporary Protective Orders in Georgia, What You Should Know

The Bureau of Justice Statistics shows that, nationally, a woman is assaulted or beaten every 9 seconds.  The National Intimate Partner and Sexual Violence Survey reported that every minute, almost 20 people are physically assaulted by an intimate partner.  The Centers for Disease Control and Prevention reported that approximately 19.3 million women and 5.1 million men (in the United States alone) have been victims of stalking.  In 2000, 1,247 women and 440 men were killed by an intimate partner, as reported by the U.S. Department of Justice, 197838, Bureau of Justice Statistics Crime Data.

 The Police Chief (February 2016) reported that, over the fourteen years reviewed, 771 law enforcement officers were murdered in the line of duty with 14% of those killed while responding to domestic violence incidents.

 Obviously, domestic violence is a serious problem in America.  And there are a vast number of studies that address the psychological aspects questioning why a person remains in a  violent and/or abusive relationship.  So, I will not delve into the psychological aspects in this article. 

 But, what should you do if you find yourself in a violent or abusive relationship?  First, if you detect that violence is imminent, you should immediately remove yourself from that environment.  In other words…..leave.

Second, if domestic violence has occurred once, there is a strong likelihood that domestic violence will occur again.   And both women and men can be victims of domestic violence. 

As a result of the dangers encountered by law enforcement officers responding to domestic violence calls, some jurisdictions have an unwritten policy that, if police are called in response to a domestic violence call, someone has to go to jail.

And, unlike some other crimes, physical evidence is NOT required in order for an Officer to make an arrest related to domestic violence.   Pursuant to O.C.G.A. § 17-4-20, “[a]n arrest for a crime may be made by a law enforcement officer either under a warrant or without a warrant if the offense is committed in such officer’s presence or within such officer’s immediate knowledge; if the offender is endeavoring to escape; if the officer has probable cause to believe that an act of family violence…. has been committed; or if the officer has probable cause to believe that an offense involving physical abuse has been committed against a vulnerable adult…..”

O.C.G.A. § 19-13-1 defines family violence as “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” and includes any felony; or commission of the offenses of battery, simple battery, simple assault, assault, stalking, criminal damage to property, unlawful restraint, or criminal trespass.

Simple battery is defined as intentionally making physical contact of an insulting or provoking nature with the person of another (note that physical evidence is NOT necessary); or intentionally causing physical harm to another.  For example, one person could allege that he/she was pushed by the other individual.  Under the law, that would satisfy the elements of simple battery (physical contact of an insulting or provoking nature).  O.C.G.A.  § 16-5-23.

Battery is defined as intentionally causing substantial physical harm or visible bodily harm to another.  “Visible bodily harm” is defined as causing bodily harm capable of being perceived by a person other than the victim, and may include, but is not limited to, blackened eyes, swollen lips, or other facial or body parts, or bruises to body parts.  In other words, if there are visible scratches, bruises or scars, there is a strong likelihood that an arrest will occur for the crime of battery.  O.C.G.A. § 16-5-23.1.

Simple Assault occurs when one attempts to commit a violent injury to the person of another, or commits an act which places another person in reasonable apprehension of immediately receiving a violent injury.  O.C.G.A. §  16-5-20 (2010).  For example, a man angrily draws back his fist and places the woman in fear of being hit (i.e., fear or receiving a violent injury).  No actual physical contact is required.

Aggravated Assault involves the use of a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.  For example, in a domestic violence incident, someone pulls a knife or a gun, or attempts to, or does hit the victim with a bat or some other dangerous object.

Stalking occurs when an individual, places someone 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.  

Stalking may also occur through electronic and other means (e.g., through the use of a computer, mail, telephone, social media, or any other electronic device).  Stalking incidents involving a computer/electronic device is deemed to have occurred at the place or places where such communication is received.

“Harassing and intimidating” means a knowing and willful course of conduct directed at a specific person which causes emotional distress by placing such person in reasonable fear for such person’s safety or the safety of a member of his or her immediate family, by establishing a pattern of harassing and intimidating behavior, and which serves no legitimate purpose (an overt threat of death or bodily injury is NOT required).

Unfortunately, there have been instances in which a party seeking to gain sole possession of the residence, or in instances where the parties are contemplating divorce, a petition for a temporary protective order is filed with baseless allegations.  The Sheriff’s Deputies show up at the home and remove the Respondent from the residence, and the Respondent is then not permitted to return to the residence or have any contact with the Petitioner pending the hearing.

Recently, there was a case in which the parents, now divorced, were engaged in a custody battle.  While visiting with the father, the child hurt himself while playing with another child.  The Mother saw this as an opportunity to strengthen her position in the custody battle and rushed down and filed a petition for a temporary protective order.

Her petition alleged that the child was in danger and a twelve-month TPO against the father.  Initially, while reviewing the petition, I was surprised that the “Ex Parte” order was issued in the first place, as there was absolutely no allegation in the petition which alleged that the father had engaged in any form of domestic violence towards anyone, including the minor child.

At the hearing on the case, her petition was abruptly dismissed.

The Procedure for Filing an Application for a Temporary Protective Order

There is no filing fee to file a Petition for a Temporary Protective Order in the Superior Court (applications are available in the Clerk’s office); however, the Sheriff must serve the Respondent with a copy of the Petition, and in filing the Petition, the Petitioner must allege that the Respondent has engaged in one or more particular types of violence; and the Petitioner needs protection against future violence by the Respondent.

Pursuant to O.C.G.A. § 19-13-3, 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.

Within ten (10) days of the filing of the petition, or as soon as practical thereafter, but in no case 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, the petition shall stand dismissed unless the parties otherwise agree.

A 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.

Although there are some instances in which a petitioner abuses this valuable service, a Temporary Protective Order is a valuable tool when there have, in fact, been instances of domestic violence.  A violation of a TPO may result in an arrest for the felony offense of aggravated stalking with no bond.

A Temporary Protective Order normally lasts a full twelve (12) months, and among other restrictions, prohibits any contact (with few exceptions), and prohibits the Respondent from coming within 200 yards of the Petitioner (wherever the Petitioner may be found).

At the conclusion of the twelve (12) month temporary protective order, the TPO will terminate unless the Petitioner files for an extension of the TPO.  The Petitioner may also petition the court to terminate the TPO before the expiration of twelve (12) months.

So, I reiterate, if domestic violence is imminent, one should remove herself/himself from the environment, and think twice about remaining in a relationship where there has been domestic violence in the past.  There are many counseling services available to address anger and family violence issues.

If you are a victim of domestic violence, call the Police.  Far too many women (especially) are victims of repeated incidents of domestic violence and fail to call the police until things spiral out of control.

The Temporary Protective Order is a valuable tool which ads a layer of protection for the victim and minor children involved.  If you need assistance in filing a TPO or assistance at a TPO hearing, or if you believe that you have been falsely accused of committing domestic violence, you should seek the services of an Attorney immediately due to the serious ramifications.  There are also many free services available to you.  More information on counseling services, shelters, etc., may be obtained online, through law enforcement offices, Solicitors or District Attorneys offices.  If you have further questions, feel free to contact VANJOHNSON LAW FIRM, LLC, (404) 551-2428. http://www.vanjohnsonlaw.us

 

Strengthening Your Case For Child Custody…What You Should Know

With the growing trend of marriages and relationships, in general, ending in divorce or painful breakups, the number of custody battles involving minor children are on the increase.

And long gone are the days when there was an “assumption” that the children were better off with the mother.  More and more often, the courts are granting custody to the fathers.  And this article will address ways in which you can strengthen your case for child custody, whether you are the mother or the father of the minor children.

To begin with, under Georgia law, the father of the minor children has no legal rights to the minor children born out of wedlock, unless he “legitimates” the minor children through a legitimation proceeding.  See my article on legitimation at Parental Rights, Legitimation & Abandonment and Insight Into Legitimation in Georgia for more information on legitimation proceedings.  So, for the sake of this article, let’s assume that either the children were born as issue of a marriage or, if not, that the father has legitimated the minor children.

Under Georgia law, the standard by which the Court renders a decision on the issue of custody is what is “in the best interest of the minor children”.  And in reaching that decision, the Court will look at several factors, including but not limited to:

  • the stability of the parent;
  • the home environment;
  • the parent’s ability to care for and nurture the child;
  • the parent’s involvement in the life of the child;
  • whether there is a history of substance abuse or domestic violence;
  • the parent’s mental health;
  • the parent’s social conduct and behavior;
  • the parent’s emotional ties to the child;
  • the parent’s criminal history (if any);
  • the parent’s willingness to cooperate and foster a relationship between the child and the non-custodial parent;
  • the relationship between the child and the child’s siblings in the home of each parent; as well as, other factors the judge may consider.

Let’s first look at the stability of the parent.  If the custodial parent is constantly changing residences, dragging the minor children from school to school, subjecting the children to long drives across the city or state, this will obviously be a concern for the court.  This is not in the best interest of the minor children.  Further, if the custodial parent appears to be incapable of maintaining employment for any reasonable length of time, this too will be a concern.

If the home environment is not suitable for the children, for example, five children residing in a two bedroom apartment, this will be a significant concern.  Also, if the home environment is volatile with constant yelling and dysfunctional behavior, or if there is ongoing criminal activity in the immediate area, this will affect the judge’s decision on the issue of custody.

In one recent divorce action, there was testimony that the mother, although working from home (sporadically) , habitually left the home in disrepair including clothes all over the floor, dog hair in the bath tub for months, in addition to testimony that she fed the children rotting ground beef.  After hearing the testimony, the judge asked the mother, “Do you suffer from depression?”  The mother replied, “It’s seasonal.”  Custody was awarded to the father.

Involvement in the children’s lives pretty much speaks for itself.  If the parent seeking primary physical custody of the minor children rarely visits with the children, rarely speaks to the children and has little to no involvement in the children’s extracurricular activities, education, health care, etc., without very good cause, the chances of that parent winning a contested custody battle are slim (unless the custodial parent is shown to be unfit).

And, of course, if the custodial parent suffers from some form of drug or alcohol addiction, this will be a major concern for the court.  In fact, substance abuse often opens the door for Department of Children And Family Services to get involved and seek the removal of the children from the home.  In fact, in many cases, the custodial parent’s inability to adequately address substance abuse issues has led to a termination of that parent’s parental rights.

Further, in this age of social media where so many people feel compelled to advertise every aspect of their lives all over the internet, evidence of online postings, text messages, e-mail communications, Instagram, etc., are fair game in contested custody actions.  In a recent case, the father sought custody of the minor child in a divorce action.   At the trial of the case, he presented enlarged photographs which his wife had posted on Facebook and other social networking sites.  A few of the photos depicted his wife with alcoholic beverages in hand, intoxicated, while dressed scantily in various night clubs and bars.  She had also posted photos of herself with a busted and swollen lip after having been hit by her boyfriend.  She even went so far as to include a statement that “he is trying to kill me” (referring to her boyfriend).  The father was awarded custody of the minor child.

On the issue of a criminal history, this will depend on the type of crime or crimes committed, as well as, how recent.  Certainly, if the criminal behavior involves sex crimes, this will be a major concern for the court.  Substance abuse has been previously addressed.  If the parent had a DUI several years ago, unless there is evidence of an ongoing problem, this fact will probably not be a concern for the court.  A history of domestic violence or violent crimes will definitely be a concern for the court.

Finally, there are cases in which a parent refuses to cooperate, attempts to interfere with the other parent’s parenting time with the children, or attempts to manipulate the children.  This type of ongoing behavior can quickly lead a judge to grant custody to the other parent.

And because of the animosity that tends to be present in contested custody actions, the courts frequently appoint a Guardian Ad Litem to conduct an independent investigation and submit a report to the court with a recommendation as to “what is in the best interest of the minor children” on the issue of custody.  For further reading on custody actions, see my article on Why Fathers Are Prevailing In Custody Actions.

It should go without saying that one should never attempt to engage in a contested custody action without the assistance of competent legal counsel.  Should you have questions about child custody, call VANJOHNSON LAW FIRM, LLC, at (404) 551-2428 to discuss your case.

 

 

Discovery in Civil Actions

In every state, in civil actions, the law allows both parties to engage in what is known as “discovery”, which includes, but is not limited to, interrogatories, requests for production of documents, notices to produce, depositions and more.

Discovery is critical in civil litigation actions as it permits both parties to request answers (under oath), documents to be produced, as well as, testimony (under oath), prior to the trial of the case, and there can be severe consequences for failure to fully respond (under oath) within the statutory time frame.

The Plaintiff may serve discovery on the Defendant together with the Complaint or after the Defendant has been served.  Likewise, the Defendant may serve discovery upon the Plaintiff together with the Answer, or at a later time.  Generally, in the State of Georgia, each party has up to six (6) months to engage in discovery.

Again, generally, once a party is served with discovery, if the discovery is served together with the Complaint by the Plaintiff, the Defendant typically has forty-five (45) days to respond to the Plaintiff’s discovery requests.  More time is allotted if the discovery is served along with the Complaint as the Defendant also needs time to file an Answer, a Counterclaim, or other pleadings.

If the discovery request is not served together with the Complaint, the Defendant typically has thirty (30) days to respond, or thirty-three (33) days, if the mailbox rule is applied.

Typically, once served with discovery, the litigant is often taken aback by the perceived intrusion into his/her background, financial records, employment, e-mail history, social media accounts, text messages, titles to property, tax returns, etc.

The typical response is “Do I have to give them this information?”.  And generally, the lawyers response is “Yes”.  However, the Attorney may have legal objections to some of the requested information.  And if the parties cannot resolve the discovery disputes, then the judge will make a ruling on the contested issues.

In some instances, the litigant who has been served with discovery may contact the other party and request an “extension” of the discovery deadline.  Most Attorneys will agree to extend the time the discovery responses are due.

But, what happens if the party fails to timely respond to the discovery requests?  Under Georgia law, the proponent of the discovery requests is required to make a “good faith attempt” to resolve discovery disputes.  This typically involves sending a letter to the party that has not complied giving that party a limited amount of time to provide the discovery requested, as well as, placing that party on notice that this is a “good faith attempt” to resolve the discovery dispute.

If the non-compliant litigant still fails to respond and provide the requested discovery, the proponent may then file a “Motion To Compel Discovery”.  And in doing so, the Movant (litigant filing the motion) will typically request Attorneys Fees for having to file the motion.

A hearing is then scheduled.  If the judge finds for the Movant, the judge will issue an “Order Compelling Discovery”, and order the non-compliant litigant to provide all responses within a specific amount of time.  And the judge will likely award Attorney’s Fees to the Movant.

Let’s now consider the litigant who still fails to provide the discovery responses litigationafter the Judge has entered an “Order Compelling Discovery.”  The next motion that will be filed by the proponent of the discovery will be a “Motion for Contempt”.  Another hearing will be scheduled, and if the Judge finds for the Movant and determines that the non-complying litigant is in willful contempt, then, if requested by the Movant, the judge may order the non-compliant litigant to be taken into custody by the Sheriff and held in jail until such time as the discovery responses are provided or until such other time specified by the Judge.

Consider this example, the couple are in a romantic relationship.  The boyfriend discovers that his girlfriend just received an insurance payout of $50,000.00 due to the death of a family member.  The boyfriend asks to borrow $50,000.00 to start a business, to which she agrees.  They draft a handwritten agreement in which the boyfriend promises to repay the loan within ninety (90) days.

litigationThe couple then breaks up.  The 90 day period expires.  The boyfriend has not repaid any of the funds in question and avoids her emails and requests for payment.  She then hires an Attorney.  A lawsuit is filed, and the ex-boyfriend is served with discovery requests.

The ex-boyfriend fails to respond.  A Motion to Compel is filed, and a court Order is entered compelling the discovery responses.

Again, the ex-boyfriend fails to respond.  At the request of the Attorney, the ex-boyfriend is arrested and incarcerated.

The next typical event is a series of phone calls from the ex-boyfriend’s family members desperately wanting to get him out of jail.

The ex-boyfriend quickly agrees to provide the discovery responses.  The Attorney contacts the Judge’s office and requests that the ex-boyfriend be released from custody.  The Judge complies.

But then the ex-boyfriend only provides incomplete discovery responses.  Accordingly, the Attorney files another Motion for Contempt.  The Judge reviews the incomplete discovery responses provided by the ex-boyfriend and then has him thrown back in jail.

By this time, the ex-boyfriend resolves in his mind that he needs to repay his ex-girlfriend her money to end the lawsuit.

Although discovery may be perceived as extremely intrusive and cumbersome to comply with, if involved in a civil litigation matter (i.e., lawsuit, personal injury litigation, divorce, custody, legitimation, or any civil contested matter), one should anticipate being required to respond to discovery requests (under oath).  Again, as always, when involved in a litigation matter, consult with an Attorney immediately, even if you have determined in your mind that you want to take the risk of representing yourself in the litigation matter.  Should you desire a consultation to discuss your case, contact VANJOHNSON LAW FIRM, LLC (404) 551-2428 for a consultation.

 

 

 

The Perils of the “Pro Se” Litigant

Over the past nineteen years of law practice, it has never ceased to amaze me as to why so many people attempt and do enter into the legal arena in an attempt to represent himself/herself in complex legal matters. As far back as law school, we were always reminded of the saying, “Any man who represents himself has a fool for a client“. And there are so many reasons why that saying holds true.

Pro se” is a Latin term which means “in one’s own behalf”. A pro se litigant is one who represents himself/herself in court without the assistance of an Attorney.

Consider the fact that, in most instances, attorneys, trained in the legal profession and the law, will not even represent themselves. So, if a trained, experienced attorney typically will not defend a legal action without legal counsel, what makes an untrained, inexperienced person want to dive into those troubled waters without a legal advocate? Well, the obvious reasons that come to mind are: (1) lack of funds; (2) simply trying to save money; or (3) lack of knowledge of the ramifications he/she is facing.

So, let’s start with the simple traffic case. Many people go to court after having received traffic citations. Some will simply pay the fine while others will go to court and plead “guilty”. But what many don’t understand is, if you simply go to the clerk’s office and pay the fine without going before the judge, that results in a “guilty” conviction. When others go to court and simply enter a “guilty” plea, the ramifications may often include the suspension of driving privileges.

I can’t tell you the number of times I have been inside a courtroom among other attorneys. The judge or clerk calls the calendar. Pro Se litigants stand up and enter their plea of “guilty“. The attorneys in the courtroom all look at each other and shake their heads, because they know that that offense to what that pro se litigant just pleaded guilty to will result in a suspension of his/her driver’s license.

And sure enough, a month or two later, that pro se litigant is driving down the street and gets pulled over for running a red light, gets into a minor fender bender, or is pulled over for no seatbelt. The officer writes the ticket and then asks the driver to step out of the vehicle.

“Why?” the driver asks.

“Because your license is suspended,” the officer responds as the handcuffs are fastened to the driver’s wrist, behind his/her back.

And then the argument ensues about how he didn’t know that his license was suspended. However, that argument falls on deaf ears as the officer places the driver into the back seat of the police vehicle.

That driver may have saved $450.00 by not retaining legal representation for the arrest, pro seoriginal traffic ticket which he pled guilty to; however, now that same driver will have to post a bond to get out of jail, and will now have a more significant fine on the suspended license ticket, in addition to probable probation, probation supervision fees, possible community service, etc., etc. Had that driver at least paid an attorney for a consultation (at a minimum) prior to going to court, the attorney would have advised the driver against simply paying the ticket or entering a “guilty” plea to that particular charge.  Other options could have avoided the tragic result.

Now, let’s switch gears away from traffic violations and take a look at domestic (family law) cases. Again, whether the individual does not have funds or is simply attempting to avoid paying legal fees, many individuals find themselves in a quagmire or maybe incarcerated due to a lack of understanding of the law. Take for example, a pro se litigant in a divorce or custody action decides to go it alone without legal representation. The opposing party is represented by legal counsel. Discovery requests are served upon the pro se litigant; however, she incorrectly believes that she should not have to reveal all of her financial information to the opposing party.

litigationThe result, a “Motion to Compel Discovery” is filed against the pro se litigant who, however, remains defiant. The irritated judge has the Sheriff’s Department take the pro se litigant into custody and renders a damaging decision against the pro se litigant in her divorce case.  The court orders that the pro se litigant be held in jail until she has complied fully with the discovery requests and pays a purge amount to the opposing attorney before she can be released from jail.

The pro se litigant may have initially saved money by trying to “go it alone”; however, now the pro se litigant has been ordered to pay attorney’s fees to the opposing party’s attorney, in addition to having to comply with the court order awarding the opposing party much more than would have been awarded had the pro se litigant been represented by counsel.

And after having been victim to the wrath of the judge, the pro se litigant then hires an attorney in an attempt to undo what damage has already been done.  As you can see, the costs to the pro se litigant have skyrocketed.

And consider this example, a pro se litigant in an automobile accident case attempts to resolve his injury claim.  When he doesn’t receive the offer that he desired, instead of suing the wrongful driver, he files a lawsuit against the wrongful driver’s insurance company.  The statute of limitations runs out and court after court denies his frivolous lawsuit.  But determined (not knowing the law), he wastes countless numbers of hours and money heading down some wrong rabbit trail.  No doubt, at some point, the court will award attorneys fees to the attorneys representing the insurance company for having spent time defending the frivolous law suit.

Another reason why it’s not good to go it alone in legal matters is that the pro se litigationlitigant is so emotionally attached to the legal conflict. When one is emotionally distraught, it is difficult to think clearly….logically. Hence, it is good to have a clear thinking advocate who can accurately assess the issues and prosecute or defend the legal matter according to law and court procedure.

Accordingly, the next time you are faced with any legal matter beyond the simple “no seatbelt” ticket, think twice before deciding to go it alone. At a minimum, at least speak to an Attorney.  If you desire a consultation on a legal matter, call VANJOHNSON LAW FIRM, LLC.  (404) 551-2428

Parental Rights, Legitimation & Abandonment

parental rights, custody, legitimation

When it comes to the issue of parental rights in Georgia, the law is clear in most instances.  What rules above all else is “what is in the best interest of the minor children”.

As has been discussed in previous posts, if a child is born out-of-wedlock, the Father has no legal rights until/unless he first “legitimates” the minor children in the Superior Court.  However, this does not mean that in a situation where, for example, the mother is a drug addict or is unfit, that the Father can’t immediately gain custody of the minor children.  If the children are in danger (drug use, crime, sexual abuse, etc.) , the Court can and will remove the children from the custody of the Mother.  The Father can immediately gain custody of the children in instances such as these.  The Court will then require the Father to file a Legitimation action.  Again, the deciding factor is, “what’s in the best interest of the minor children”.

So, let’s take a step backwards and assume that the Mother is fit, the domestic litigationchildren were born out-of-wedlock; however, the Father has not provided financial support for the children.   Under O.C.G. A. § 19-10-1, the law addresses the criminal charge of ” Abandonment of dependent child” as follows:

(a) A child abandoned by its father or mother shall be considered to be in a dependent condition when the father or mother does not furnish sufficient food, clothing, or shelter for the needs of the child.

(b) If any father or mother willfully and voluntarily abandons his or her child, either legitimate or born out of wedlock, leaving it in a dependent condition, he or she shall be guilty of a misdemeanor. Moreover, if any father or mother willfully and voluntarily abandons his or her child, either legitimate or born out of wedlock, leaving it in a dependent condition, and leaves this state or if any father or mother willfully and voluntarily abandons his or her child, either legitimate or born out of wedlock, leaving it in a dependent condition, after leaving this state, he or she shall be guilty of a felony punishable by imprisonment for not less than one nor more than three years. The felony shall be reducible to a misdemeanor. Any person, upon conviction of the third offense for violating this Code section, shall be guilty of a felony and shall be imprisoned for not less than one nor more than three years, which felony shall not be reducible to a misdemeanor. The husband and wife shall be competent witnesses in such cases to testify for or against the other.

(c) The offense of abandonment is a continuing offense. Except as provided in subsection (i) of this Code section, former acquittal or conviction of the offense shall not be a bar to further prosecution therefor under this Code section, if it is made to appear that the child in question was in a dependent condition, as defined in this Code section, for a period of 30 days prior to the commencement of prosecution.

(d) In prosecutions under this Code section when the child is born out of wedlock, the venue of the offense shall be in the county in which the child and the mother are domiciled at the time of the swearing out of the arrest warrant; but, if the child and the mother are domiciled in different counties, venue shall be in the county in which the child is domiciled.

(e) Upon the trial of an accused father or mother under this Code section, it shall be no defense that the accused father or mother has never supported the child.

(f) In the trial of any abandonment proceeding in which the question of parentage arises, regardless of any presumptions with respect to parentage, the accused father may request a paternity blood test and agree and arrange to pay for same; and in such cases the court before which the matter is brought, upon pretrial motion of the defendant, shall order that the alleged parent, the known natural parent, and the child submit to any blood tests and comparisons which have been developed and adapted for purposes of establishing or disproving parentage and which are reasonably accessible to the alleged parent, the known natural parent, and the child. The results of those blood tests and comparisons, including the statistical likelihood of the alleged parent’s parentage, if available, shall be admitted in evidence when offered by a duly qualified, licensed practicing physician, duly qualified immunologist, duly qualified geneticist, or other duly qualified person. Upon receipt of a motion and the entry of an order under this subsection, the court shall proceed as follows:

(1) Where the issue of parentage is to be decided by a jury, where the results of those blood tests and comparisons are not shown to be inconsistent with the results of any other blood tests and comparisons, and where the results of those blood tests and comparisons indicate that the alleged parent cannot be the natural parent of the child, the jury shall be instructed that if they believe that the witness presenting the results testified truthfully as to those results and if they believe that the tests and comparisons were conducted properly, then it will be their duty to decide that the alleged parent is not the natural parent;

(2) The court shall require the defendant requesting the blood tests and comparisons pursuant to this subsection to be initially responsible for any of the expenses thereof. Upon the entry of a verdict incorporating a finding of parentage or nonparentage, the court shall tax the expenses for blood tests and comparisons, in addition to any fees for expert witnesses whose testimonies supported the admissibility thereof, as costs.

(g) In prosecutions under this Code section, when the child is born out of wedlock and the accused father is convicted, the father may be required by the court to pay the reasonable medical expenses paid by or incurred on behalf of the mother due to the birth of the child.

(h) The accused father and the mother of a child born out of wedlock may enter into a written agreement providing for future support of the child by regular periodic payments to the mother until the child reaches the age of 18 years, marries, or becomes self-supporting; provided, however, that the agreement shall not be binding on either party until it has been approved by the court having jurisdiction to try the pending case.

In other words, if 30 days transpires without the non-custodial parent providing support, the custodial parent may go down to the Magistrate Court in the County in which the child resides and apply for a criminal warrant for abandonment.

However, let’s assume that the parents were, in fact, married at the time the minor children were born.  In this instance, both parents have equal parental rights to the minor children, until/unless a court order says otherwise.

Accordingly, with pending divorce actions, Mothers have lost custody of the minor children by assuming they can simply pack up the children and leave the State; thereby, depriving the Father of his parental rights.  Neither parent can assume (unless there is a court order stating otherwise) that he or she has a right superior to that of the other parent as pertains to the minor children, unless there is a court order conferring that right upon that parent.

And since we are on the subject of parental rights, I would simply like to address the marital residence.  Under Georgia law, with few exceptions, any property that is acquired during the marriage will be considered “marital property” regardless of whose name is on the title.

Recently, a caller informed me that her Husband ordered her to move out of the marital residence.  And she obeyed.

It was discovered that they had been married eight years.  The Husband purchased the house one year ago; however, the title was in his name.  The caller was promptly informed that she can move back into the marital residence immediately, as the house was marital property and she had just as much ownership interest in the home as her husband.  No court order had been entered stating otherwise.

Although the law as pertains to children, parental rights, legitimation, marital property, etc., can seem confusing, most answers can be obtained quickly by consulting with an experienced Attorney.  Should you have any questions pertaining to domestic litigation and/or family law issues, call us at (404) 551-2428 to schedule a consultation.

 

Insight Into Legitimation in Georgia

legitimation and custodyChildren are a blessing, whether they are the result of intended or unplanned pregnancies.  And in the result of a failed marriage or failed relationship, far too often, children become the centerpiece of conflict between the parents.

Regardless of the relationship between the parents, having children creates a binding connection between the parents that will last a lifetime.

And as frustrating as it may be, under Georgia law, if the child is born out-of-wedlock, the Father has absolutely no legal rights to the child, unless he legitimates the child in the Superior Court.  However, although the Father has no legal rights, he is still required to pay child support.  And failure to provide support beyond a thirty (30) day period can result in a criminal arrest for the misdemeanor offense of “abandonment”, should the Mother pursue a criminal warrant.

Thus, step number one for the Father of a child born out-of-wedlock is to ensure that financial support is being provided for the minor child.  And it would be wise to be sure that the financial support is being provided in the form of a check or some other method which leaves a paper trail.  This will eliminate the allegations of not having provided any financial support when payments have been made in cash.

Next, there have been numerous cases in which paternity is an issue of concern.  When in doubt, obtain a paternity test, and request the test early.  There are many cases in which the alleged Father waited years until the child was twelve or older before requesting a paternity test only to discovery, to his dismay, that the child is not his.  However, many courts have ordered that the alleged Father continue to provide support for the child.

The Petition for Legitimation must be filed in the County in which the Mother and minor child reside.  Unlike years ago, the legitimation action may be combined with a custody and visitation action.  Accordingly, along with the petition for legitimation, the Father may seek “joint legal custody”, “sole legal custody”, “joint physical custody”, “primary physical custody”, visitation, etc.

Georgia legitimation, visitation, custody

Georgia legitimation action

On the issue of custody, one needs to understand the difference between “legal custody” and “physical custody”.  “Legal Custody” determines which parent has input into the child’s religious upbringing, education, extra curricular activities, and health related issues.

Accordingly, if one parent has sole legal custody, then that one parent has exclusive control over the aforementioned activities pertaining to the minor child.

If the parents share “joint legal custody”, then both parents may make decisions pertaining to the minor child.  However, where there is “joint legal custody”, one parent has to retain tie-breaking authority (final decision making authority) in the event that the parties cannot agree.  For example, one parent may want the child to be raised Muslim while the other parent wants the child to be raised Christian.  If both parents refuse to budge on the issue, then one of the parents must have final decision making authority.

Typically, “final decision making authority” is granted to the parent who has “primary physical custody.”  And the parents may reach an agreement in which, for example, the Mother has tie-breaking authority on the issues of education and religion, and the Father has tie-breaking authority on the issues of health care and extracurricular activities.

“Physical custody” pertains to where the child actually resides.  Although there are some instances in which the parents share “joint physical custody”, in most instances, one parent has “primary physical custody”.  The other parent is then granted “visitation”.  And the typical visitation schedule involves parenting time every other weekend, or on the first, third and fifth weekend, or some other arrangement, with holidays, spring break, summer, Christmas holidays, etc., divided between the parties.  Some holidays such as Thanksgiving are rotated on odd and even numbered years.

And, at times, “joint physical custody” arrangements can eliminate the necessity of either parent paying child support to the other, in situations where the parenting time is truly 50/50.

Because of the complex issues involved in “legitimation”, legal and physical custody, and even visitation, it is never advisable to pursue this action without the advise and counsel of an experienced Attorney.  VANJOHNSON LAW FIRM, LLC, has represented clients in family law matters throughout the Atlanta metropolitan area, in addition to the State of Georgia.  Call us today at (404) 551-2428 to discuss your family law matter.

 

Georgia Petition for Legitimation, Visitation & Custody

Georgia legitimation

Georgia legitimation, visitation and custody

Georgia’s Petition for Legitimation is an often misunderstood requirement when it comes to children born out-of-wedlock.

Romantic relationships, whether an overnight fling or a lasting relationship, can often result in the birth of a minor child.  And when the relationship comes to an end, there tends to be an ongoing struggle to maintain an active role in the life of the child born out-of-wedlock.

Almost on a daily basis, questions arise about how a father can exercise his parental rights as pertains to his child.  The first question that must be answered is whether the father and mother were married at the time the child was born, or whether they have since married.  If the answer to both questions is “no”, then Georgia does not automatically extend parental rights to the biological father as pertains to the minor child.  However, he is still required to pay child support for the minor child.  And if thirty (30) days passes without the father providing any financial support for the minor child, the mother may apply for a criminal warrant for the misdemeanor charge of “abandonment.”  In order for the Father to enjoy parental rights, if the child is born out-of-wedlock, he must first bring a legitimation proceeding before the Superior Court

LEGITIMATION

The majority of legimation actions are brought by the biological father mainly because the father desires to have visitation rights, custody, or some input into the upbringing of the minor child.  Ocasionally, there are instances in which the father will bring a legitimation action as a form of retaliation against the mother, but this is not the fact in a majority of cases.

The Petition for Legitimation will contain language in which the biological father asserts that he is, in fact, the biological father of the minor child.  And the petition will include language indicating that the Plaintiff or Petitioner “desires that the minor child be declared the legitimate son (or daughter) of the Plaintiff, capable of inheriting from the Plaintiff in the same manner as if born in lawful wedlock”.

In the majority of cases, courts do favor the granting of legitimation petitions.  Where courts typically oppose or deny legitimation petitions are in cases in which the father has failed to provide any support for the minor child, and further, has not shown any active interest in participating in the child’s life.

If the biological mother opposes the legitimation of the minor child, both parties will need to produce evidence to support their arguments for or against the granting of the petition.

In the event the legitimation is granted, then the court will move to the next phase, the discusion of visitation, child support, primary physical custody and/or legal custody, depending on what relief the Plaintiff is seeking.

VISITATION

When it comes to visitation, the typical visitation schedule will include language such as, “The Father shall have liberal visitation with the minor child “as the parties may agree”.  Thus, if the parties are in agreement with the non-custodial parent visiting with the minor child every day of the week, that’s fine with the courts.

The actual written visitation schedule applies if the parties are unable to agree. And the standard visitation schedule permits the non-custodial parent to visit with the minor child every other weekend or the 1st, 3rd and 5th weekends of each month typically from Friday at 6:00 PM until Sunday at 6:00 PM.  Remember, this is the typical standard visitation schedule.

Additionally, the standard visitation schedule attempts to equally divide the holidays.  For example, for Christmas holidays, one parent may have visitation from the day school lets out until around 12:00 noon, Christmas Day.  The other parent visits with the minor child from 12:00 noon Christmas Day until New Years Day.

Thanksgiving holidays, as well as, the other holidays are alternated between the parents based on odd or even numbered years. The child visits with the Mother on Mother’s Day, and the Father on Father’s Day.

The non-custodial parent typically has spring break with the minor child, or it may alternate year to year between the parents.

The non-custodial parent typically has anywhere from two to four weeks with the child during the summer months.  But there are also visitation schedules which also include overnight visits during during the week.  The courts always prefer that the parties work out a visitation schedule on their own, if possible.

CUSTODY

And finally, there’s the issue of custody.  In the past, the Plaintiff was required to file a legitimation action first, and then only after legitimation was granted, could he bring an action for custody.  But that is no longer the case.  Legitimation and Custody actions may be filed contemporaneously.

Primary “physical custody” determines which parent the child shall reside with.  “Legal custody” determines which parent will be authorized to make decisions pertaining to issues such as the child’s education, religious upbringing, health-related issues and extracurricular activities.

One parent may be granted “primary physical custody” or the parties may share “joint physical custody”.  In one divorce action, for example, the divorcing parents literally resided next door to each other.  In that case, the children would reside with one parent four days out of the week and three days with the other parent.  The parties agreed to “joint physical custody” and neither party received any child support from the other.  However, this is definitely not the norm.

As pertains to “legal custody”, the court may order, or the parents may agree to share “joint legal custody”.  Whenever there is “joint legal custody”, one of the parents will have “final decision making authority”, in the event the parents are unable to agree.  Final decision making authority is typically granted to the parent who has primary physical custody of the minor child.

The parents may agree, or the court could order that one parent may have final decision making authority on certain issues, and the other parent has final decision making authority on the remaining issues.

CONCLUSION

Unfortunately, many relationships don’t always work out.  And there are many reasons why they don’t.  But, if a child is born out-of-wedlock in the State of Georgia, the Father needs to understand that until such time as he files a Petition for Legitimation, the Mother shall retain sole legal and physical custody of the minor child.  The Father will have no legal rights pertaining to the minor child until such time as legitimation is granted.  Once a legitimation action has been granted, then the Father may pursue visitation, custody or any other parental rights as pertains to the minor child.  For more information or to have your questions answered on these or other legal issues, feel free to contact VANJOHNSON LAW FIRM at (404) 551-2428 or toll free (866) 834-3762, or you may e-mail me at: info@vanjohnsonlaw.us.