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Family Violence Protection Orders: They are harder to obtain than you think

Restraining orders: we see them a lot in television shows and movies, and it seems that anyone can get a restraining order against anyone for any reason. The reality is that it’s actually much more difficult to obtain a protection order than most people realize.


This is a common question I receive, and it makes sense – most people aren’t familiar with the process and nuances of obtaining a temporary protection order. The process begins by filing a petition for temporary relief, at which point an ex parte temporary protective order is granted. An ex parte order is an order obtained without notifying the other party. While ex parte communications are typically prohibited, they are allowed when a petitioner seeks his or her initial protection order. Ex parte orders provide protection against the respondent until he or she can be served, and a hearing is scheduled, awarding the respondent an opportunity to oppose the protection order. But why? Why, if you’re in fear for your life, does the respondent get the opportunity to say his or her piece?

Put simply, everyone has the right to due process under the law. This is promised in both the United States and Georgia Constitutions. In any lawsuit, the person being sued has the right to be served properly and afforded an opportunity to defend himself or herself against all charges or claims. But aside from the fact that it’s an absolute right, protection orders come with additional conditions which, if granted, limit the respondent’s freedoms. A temporary protection order does not merely prohibit a respondent from speaking to the petitioner but further imposes rather serious consequences on those against whom they have been taken. When someone violates the conditions of a protection order, the violation itself is enough probable cause for the police to arrest the violator. Even though a protection order is a civil order, violation of the conditions opens the respondent up to both civil contempt and criminal charges.

Temporary protection orders limit certain constitutional rights that we all possess, so yes, the opposing party does have the right to oppose a petition for protection, and he or she has the right to do so no more than thirty days after the date of the entry of an ex parte order.


Petitioners have the burden of proving that they are in fear for their lives and that their lives are in danger without the issuance of a protection order. Now, this burden is lower than a prosecutor would have in a criminal case, but it is nonetheless a burden. In order to qualify for a protection order, petitioners must show by a preponderance of the evidence that family violence has occurred in the past and that it may occur in the future. I’ll break that down.

What is a preponderance of the evidence burden? This means that a petitioner has to show that it is more likely than not that family violence has occurred and may occur again. I’ll go back to law school mock trial for a second and illustrate with a classic analogy. Imagine you have a scale, and on that scale the balances are even. You place a feather on one side, and the balance tips ever so slightly – this is a preponderance of the evidence. The feather is enough to meet that burden. So yes, it’s a relatively low bar, but the kicker is proving you have that feather of evidence in the first place and that it weighs more than whatever is on the other side.

So, we’ve established the burden you need to meet. But how does the law define family violence? Pulling directly from the statute, O.C.G.A. § 19-13-1, family violence is defined as “any felony, or commission of offenses of battery, simple battery, simple assault, assault, stalking, criminal damage to property, unlawful restraint, or criminal trespass.” So, let’s say your spouse or significant other hits you and is convicted of simple battery in a criminal trial. Do you qualify for a family violence protection order? Well, short answer is … it depends. Is this the first time your significant other has hit you? Is this a repeating pattern of behavior? Or was this a one-off experience? These are the questions the court, and your lawyer, will ask you. One instance of violence does not automatically qualify you for a protection order, even with a conviction.

And what about instances of emotional and mental abuse? While it’s not impossible to obtain a protection order absent a showing of physical abuse, it is much more difficult. During my career I have seen and heard of many instances of non-violent control and manipulation, but where there is a lack of physical evidence courts are much more unwilling to grant protection orders. The bar is, and always has been, are you in fear for your life?


A protection order is a piece of paper, signed by a judge, imposing conditions upon the respondent. It is not a pair of handcuffs. It does not build an impenetrable brick wall between you and the respondent. And one major danger of obtaining a protection order is that it can escalate the respondent’s behavior.

Some people take court orders very seriously. Others do not care about potential consequences of violating a protection order. And still others find themselves so angry at the order that they cannot think far enough ahead to see what those potential consequences are. Family violence protection orders are intended to prevent future family violence, but orders do not always control human behavior.


If you are wondering if a protection order is a viable option for you or if you are currently defending against a protection order which you feel is unwarranted, reach out to the Manely Firm to schedule a consultation. Our attorneys are experienced and can explain your rights and options. We will work with you to ensure you understand them and are well represented.

Julia Shankus