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Redacted Domestic Violence Temporary Protective Order Answer

by merlin on August 16th, 2017
  • Sumo

As is my practice, when I have filed a document, I typically post a redacted copy of that document here on this site.  I do this to assist both fellow practitioners (who may find something useful, or who may shed better light on the flaws in a document) and persons facing a situation that it sheds some light on.

 

The Georgia Code provides for the issuance of a Domestic Violence Restraining Order at Section 19-13-4.  The law is below:

“(a) The court may, upon the filing of a verified petition, grant any protective order or approve any consent agreement to bring about a cessation of acts of family violence. The court shall not have the authority to issue or approve mutual protective orders concerning paragraph (1), (2), (5), (9), or (11) of this subsection, or any combination thereof, unless the respondent has filed a verified petition as a counter petition pursuant to Code Section 19-13-3 no later than three days, not including Saturdays, Sundays, and legal holidays, prior to the hearing and the provisions of Code Section 19-13-3 have been satisfied. The orders or agreements may:

(1) Direct the respondent to refrain from such acts;

(2) Grant to a party possession of the residence or household of the parties and exclude the other party from the residence or household;

(3) Require a party to provide suitable alternate housing for a spouse, former spouse, or parent and the parties’ child or children;

(4) Award temporary custody of minor children and establish temporary visitation rights;

(5) Order the eviction of a party from the residence or household and order assistance to the victim in returning to it, or order assistance in retrieving personal property of the victim if the respondent’s eviction has not been ordered;

(6) Order either party to make payments for the support of a minor child as required by law;

(7) Order either party to make payments for the support of a spouse as required by law;

(8) Provide for possession of personal property of the parties;

(9) Order the respondent to refrain from harassing or interfering with the victim;

(10) Award costs and attorney’s fees to either party; and

(11) Order the respondent to receive appropriate psychiatric or psychological services as a further measure to prevent the recurrence of family violence.

(b) A copy of the order shall be issued by the clerk of the superior court to the sheriff of the county wherein the order was entered and shall be retained by the sheriff as long as that order shall remain in effect.

(c) Any order granted under this Code section shall remain in effect for up to one year; provided, however, that upon the motion of a petitioner and notice to the respondent and after a hearing, the court in its discretion may convert a temporary order granted under this Code section to an order effective for not more than three years or to a permanent order.

(d) A protective order issued pursuant to this Code section shall apply and shall be effective throughout this state. It shall be 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.”

I am especially interested in subsection (a)(10), in which the Court may “[a]ward costs and attorney’s fees to either party”.  When the filing is frivolous, this seems very appropriate.  

The following is a redacted Answer to a Domestic Violence TPO.  Note that it must be responded to within seven (7) days!

ANSWER TO PETITION FOR TEMPORARY PROTECTIVE ORDER,

MOTION FOR SANCTIONS, AND MOTION TO DISMISS

 

            COMES NOW Respondent XXXXX XXXXX, by and through undersigned counsel, and makes and files this, his Answer to Petition for Temporary Protective Order, Motion for Sanctions, and Motion to Dismiss in response to the misleading, redundant, and maliciously harmful Temporary Restraining Order that Petitioner has sought against XXXXX XXXXX, and in support thereof states the following:

IMMEDIATE RESPONSE TO FRAUDULENT PETITION

1.

            XXXXX XXXXX is suffering from déjà vu, because this is remarkably similar to Petitioner’s actions two years ago, when the issue of child custody was first litigated between the parties and Petitioner brought an ex parte Temporary Protective Order against him at that time to prevent him from seeing his child.  Similar to the situation that occurred last time, this can easily be shown to be fraudulent in every way and motivated not by fear for her safety but by transparent child custody motivations.  In support thereof, Respondent attaches a copy of the Petition for Temporary Protective Order that Petitioner sought at that time hereto as Exhibit “A”.  Noticeably, there is an incredible similarity between the two, even using the same threat in each document (“over his dead body”), so that Petitioner could remove the child of the parties from his care and custody using a falsely-obtained process of law.

2.

            Attached hereto and incorporated herein as Exhibit “B” is a copy of the Order as to Legitimation, Custody, and Support entered by the Superior Court of XXXXX County on the XXth day of XXXXX, 20XX, which specifically places the final decision as to all disagreements between the parties in child custody matters addressed by their agreement with Respondent.  The present Temporary Protective Order being sought arose following a dispute between the parties about Petitioner’s refusal to attend “orientation” (see Paragraph 4 of Petition for Temporary Protective Order), a dispute that concerns the entry of the child of the parties into a formal educational facility described in Paragraph A a) of Exhibit “B”.  However, as Petitioner informed Respondent, preschool is not mandatory, though she relied on this paragraph when bringing the police to his residence to forcibly take the child from his custody, prior to unilaterally cancelling her attendance at preschool without consulting Respondent.

3.

            Following the requisite hearing on this issue and the review of the parties’ proof, this Court should not hesitate to pursue all available charges against Tammy Head for the crime of false swearing, given that she has expressly lied to the Superior Court Judge that issued this Petition, and both incarceration and fines should be Ordered for her disingenuous actions against XXXXX XXXXX.

ITEMIZED ANSWER OF RESPONDENT

4.

            Respondent ADMITS that jurisdiction and venue for this action lies in White County, but DENIES each and every one of the other allegations made in the Petition for Temporary Protective Order, specifically denying that his telephone call to her described in Paragraph 4 of that document contained threats to her and further denying that he ever said he would kill her.  Though admittedly not valid evidence due to lack of consent, Respondent has recorded all telephone conversations with Petitioner given her established pattern of blatant falsehoods.  He has reviewed the conversation in question, and no such threats were ever made.

5.

            The statement made by Petitioner in Paragraph 5 of the Petition for Temporary Protective Order is hereby DENIED.

6.

            The allegations made by Petitioner in Paragraph 5 of the Petition for Temporary Protective Order is hereby ADMITTED.

Section 19-9-3(a)(1) of the Official Code of Georgia states that “[i]n all cases in which the custody of any child is at issue between the parents, there shall be no prima-facie right to the custody of the child in the father or mother.“  In this case, however, the matter of custody has been judicially-established, and the terms that govern it are clear.  Petitioner’s behavior is indefensible. 

7.

The Domestic Violence Temporary Protective Order being sought by Petitioner arises directly from the Stalking Protective Order provided for by the Georgia Code, and is a specialized form of that law.  O.C.G.A. § 16-5-94(d) provides the Court with the power to do the following in the course of these proceedings:

(1)  Direct a party to refrain from such conduct;

 (2)  Order a party to refrain from harassing or interfering with the other;

 (3)  Award costs and attorney’s fees to either party; and

 (4) Order either or all parties to receive appropriate psychiatric or psychological services as a further measure to prevent the recurrence of stalking.”

            This recommendation was not acted on in the petition filed and subsequently dismissed in XXXXX 20XX, but it would be appropriate to do this now.  She lied, and she did so knowingly, willfully, and maliciously.

Section 19-13-56(b) excuses the officers whose assistance was falsely obtained from being held liable, but each and every one of these potential forms of relief are appropriate against Petitioner for her behavior.  She violated a verified petition and enlisted the assistance of a Superior Court Judge in her perjury and she wrongfully took a child out of a safe environment to instead keep that child living under her thumb in a sordid and unhealthy situation. 

8.

            Section 16-5-94(d)(3) permits the Court “to award attorney’s fees and costs to either party” (emphasis supplied), and the action of Petitioner have necessitated substantial and diligent action by undersigned counsel.  The undersigned has agreed to this representation in addition to an action for modification of custody being initiated by Respondent in XXXXX County because it directly pertains to that representation.  This representation would not have been necessary but for the petty and fraudulent actions of Petitioner.  The undersigned hereby requests that he be paid attorney’s fees of $1,000, representing approximately five hours, and that a reasonable amount be assessed for costs against Petitioner.  The undersigned will gladly provide an itemized statement of work performed to the Court to substantiate this request, if such is deemed necessary.

            WHEREFORE, Respondent requests the following relief:

 

  • For the Court to dismiss the temporary protective order directed by it against Respondent;

 

 

  • For an Order granting $1,000 in attorney’s fees against Petitioner and in favor of the undersigned directly;

 

 

  • For an Order granting reasonable costs related to and arising from this action to Respondent and against Petitioner; and

 

 

  • For such other and further relief as the Court in its discretion deems fit to grant.

 

Respectfully submitted, this XXth day of XXXXX, 20XX.

 

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