Written by attorney Douglas Nathan Fox

Stalking as Basis for Temporary Protective Order in Georgia


Restraining orders are court orders that prevent one person from having any contact with another party. In Gwinnett County, as well as the rest of the State of Georgia, there are two basic ways for a judge to issue a restraining order, also known as a Temporary Protective Order, or TPO. The first way involves acts of family violence and is addressed in Georgia statutes beginning with O.C.G.A. § 19-13-1; a family violence TPO requires that the individual petitioning for a TPO, the “Petitioner," show the judge that an act of family violence has been committed the opposing party, the “Respondent," who fits within the qualifying definition of “family" relationship (current or ex spouse or ex boyfriend/girlfriend, people living together or who did live together in the same household); the Petitioner must also show that the act(s) of family violence are likely to continue unless the court issues a TPO.

But a second way to obtain a protective/restraining order (or TPO) in Georgia, called a “Stalking TPO," does not require proof that the two subjects of the TPO petition, the Petitioner and Respondent, are involved in a family or romantic relationship. Restraining Orders based on stalking are addressed within the Georgia criminal code in O.C.G.A. § 16-5-94 and require that the petitioner-applicant show that she/he has been the victim of “stalking". A stalking TPO in Georgia is not a criminal case, however, and the issuance of a protective order based on stalking does not result in a mark on the respondent’s criminal record (because there is no arrest, only a ‘stay-away’ order that winds up on a Family Violence Registry that is (supposedly) not subject to public disclosure).

Essentially, stalking is a pattern of behavior by one party that results in the harassment and intimidation of another party (the victim.) The definition of stalking as a crime for prosecution in a criminal case (O.C.G.A. § 16-5-90) is the same definition used to show stalking for a restraining order to be issued. Many victims believe that “stalking" involves just the repeated, unwanted advances by another party or that party’s repeated attempt to contact the victim. This is only half of the picture, however. What turns a pattern of repeated, unwanted contact into the act of “stalking" is whether that pattern of behavior is “harassing and intimidating," which is identified as behavior that places the victim in fear for her safety or the safety of a family member. There does not have to be a direct threat of violence to a victim, but the subject party’s acts towards the victim must amount to the victim having reasonable concern that she may be in physical danger, or that a member of her family is in physical danger. It is not enough that a ‘victim’ is tired of someone who won’t leave her or him alone.

Because of this somewhat subjective standard to show “stalking" -- whether a party’s “pattern" of acts placed the victim in “reasonable fear for her/his safety" – it is important to know that each and every case must be judged individually in its own right. Moreover, because different judges in different court circuits have differing views on what constitutes “reasonable fear for safety" and what doesn’t, hiring an expert attorney to assist either a Petitioner or a Respondent in a stalking TPO is critical.

The issuance of a ‘stay-away’ or ‘no-contact’ order is a very serious occurrence; it can provide a victim with much-needed relief and can empower that victim to seek charges for aggravated stalking if the respondent contacts her in violation of the TPO. A TPO can also be subject to abuse and, unfortunately, is often a tool used by one party who is only looking only to gain some leverage in an unrelated matter, get some sort of revenge or to use the court or court order to end a relationship that the claimed victim simply doesn’t want to deal with anymore. In order to determine what TPOs are legitimate and which ones justify a judge’s restriction of someone’s inherent freedoms demands attention to detail and the exercise of honest discretion.

With so much riding on a TPO case, whether it is based on family violence or stalking, it is always a good idea to hire a lawyer to represent you if you are a petitioner or respondent for a restraining order case in Georgia. Whether your restraining order / TPO case will be heard in Gwinnett County, metro Atlanta or anywhere through the State of Georgia, Douglas N. Fox – as founding member of Fox Firm, P.C. with 17 years in practice – has the know-how, understanding and experience to manage and litigate restraining order/protective order cases. Fox Firm, P.C., specializing in a variety of domestic and family litigation areas, including restraining orders, is located in Gwinnett County, Georgia.

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