Emergency Custody and Protective Orders in Georgia

Two different kinds of emergency relief

Georgia law offers two main routes when a child’s situation is urgent. A Family Violence Act petition seeks a protective order against family violence and can include temporary custody (O.C.G.A. §§ 19-13-3 and 19-13-4). Inside a custody case, a judge may also change custody temporarily once an action for a change of custody has been filed (O.C.G.A. § 19-9-3(e)). Which one fits depends on your facts.

What counts as family violence

Family violence means one or more of these 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: any felony, or battery, simple battery, simple assault, assault, stalking, criminal damage to property, unlawful restraint or criminal trespass. It does not include reasonable discipline by a parent in the form of corporal punishment, restraint or detention (§ 19-13-1).

Filing a Family Violence Act petition

1. Who files. A person who is not a minor may file a petition in superior court alleging one or more acts of family violence, and may also file on behalf of a minor (§ 19-13-3(a)).
2. Where. Generally in the superior court of the county where the respondent lives. If the respondent does not live in Georgia, in the county where the petitioner lives or where an act of family violence allegedly occurred, when the requirements for personal jurisdiction over a nonresident are met (§ 19-13-2).
3. The petition. The statewide Form SC-26, Petition for Temporary Protective Order (revised 3/26) is filed under the Family Violence Act. It asks about the relationship, the acts of violence, prior incidents, the children, any custody cases, and the relief requested, including temporary custody and support, and it ends with a verification sworn before a notary public.
4. Ex parte relief. On a verified petition alleging with specific facts that probable cause exists that family violence occurred in the past and may occur in the future, the court may order temporary relief ex parte as needed to protect the petitioner or a minor of the household. An ex parte order stays in effect until the court dismisses it or the hearing takes place, whichever comes first (§ 19-13-3(b)). The statewide ex parte order is Form SC-15, Family Violence Ex Parte Protective Order (revised 3/26).
5. The hearing. A hearing is held within ten days of filing or as soon as practical after that, but not later than 30 days after the petition is filed. The petitioner must prove the allegations by a preponderance of the evidence. If no hearing is held within 30 days, the petition stands dismissed unless the parties agree otherwise (§ 19-13-3(c)). If the court finds a party is avoiding service to delay the hearing, it may delay dismissal for an additional 30 days (§ 19-13-3(e)).

Staff of family violence shelters or social service agencies designated by the court may explain the forms and filing procedure to victims without counsel, at no cost (§ 19-13-3(d)).

What a protective order can include

On a verified petition, the court may grant a protective order or approve a consent agreement. Among other things, it may order the respondent to stop the acts of violence and refrain from harassing or interfering with the petitioner; give a party possession of the residence or evict a party; award temporary custody of minor children and set temporary visitation; order child support or spousal support as required by law; provide for personal property and household pets; award costs and attorney’s fees; and order psychiatric or psychological services (§ 19-13-4(a)).

• Mutual orders. The court may not issue mutual protective orders on certain types of relief unless the respondent filed a verified counter petition no later than three days, not counting weekends and legal holidays, before the hearing (§ 19-13-4(a)).
• How long it lasts. An order under § 19-13-4 lasts up to one year. On the petitioner’s motion, with notice and a hearing, the court may convert a temporary order into one lasting up to three years or a permanent order (§ 19-13-4(c)). The statewide forms are Form SC-16, Family Violence Twelve Month Protective Order and Form SC-22, Family Violence Three Year/Permanent Protective Order.
• Child support in the order. The child support guidelines apply to orders under § 19-13-4, but those orders do not need the worksheets attached (O.C.G.A. § 19-6-15(c)(1) and (m)(1)). The statewide Form SC-25, Child Support Addendum to Family Violence Protective Order is the statewide addendum for support in a protective order.
• Statewide effect. A protective order under § 19-13-4 is effective throughout Georgia, and law enforcement officers are directed to enforce it (§ 19-13-4(d)).

How family violence affects custody

The parenting plan requirement in O.C.G.A. § 19-9-1(a) does not apply when a parent seeks emergency relief for family violence under § 19-13-3 or 19-13-4. In a custody case where the judge has found family violence, the judge must consider as primary the safety and well-being of the child and the parent who is the victim, and an absence or relocation because of the other parent’s violence, for a reasonable period, is not treated as abandonment (§ 19-9-3(a)(4)). A parent who committed family violence may be awarded parenting time only if the judge finds adequate provision can be made for the safety of the child and the victim parent, and the judge may order conditions such as supervised visitation, a protected exchange setting, or completion of a certified family violence intervention program (O.C.G.A. § 19-9-7(a)).

Temporary custody inside a custody case

• Pending a change of custody. After an action for a change of custody is filed, the judge may in his or her discretion change custody temporarily pending the final judgment. A temporary award does not decide the parties’ rights (§ 19-9-3(e)).
• Verification. Petitions for a restraining order, injunction or other extraordinary equitable relief must be verified positively by the petitioner or supported by other satisfactory proof (O.C.G.A. § 9-10-110).
• Financial papers. In emergency actions involving support, the financial affidavit, worksheets and schedules may be served on or before the date of the hearing or at another time the court orders (Uniform Superior Court Rule 24.2).
• Deployed military parents. After a deployed parent’s final return, either parent may petition to modify a temporary deployment order on the ground of immediate danger or substantial harm to the child, with a supporting affidavit, and may ask for an ex parte order. If one is issued, the court sets a hearing within ten days (§ 19-9-3(i)(11)).

When the child is from another state

A Georgia court has temporary emergency jurisdiction if the child is present in Georgia and has been abandoned, or if it is necessary in an emergency to protect the child because the child, a sibling or a parent is subjected to or threatened with mistreatment or abuse (O.C.G.A. § 19-9-64(a)). If another state has a custody order or a case that is entitled to proceed, the Georgia order must specify a period to allow an order to be obtained from that state, and the Georgia court must communicate with the other court (§ 19-9-64(c) and (d)).

Primary sources

Laws, rules and forms change. Check the current version at the source before you file.

• O.C.G.A. § 19-13-1, family violence defined
• O.C.G.A. § 19-13-2, jurisdiction and venue
• O.C.G.A. § 19-13-3, petition, ex parte relief, hearing
• O.C.G.A. § 19-13-4, protective orders
• O.C.G.A. § 19-9-1, parenting plans
• O.C.G.A. § 19-9-3, custody, including (a)(4), (e) and (i)
• O.C.G.A. § 19-9-7, parenting time after family violence
• O.C.G.A. § 19-9-64, temporary emergency jurisdiction
• O.C.G.A. § 19-6-15, child support guidelines
• O.C.G.A. § 9-10-110, verification of extraordinary relief
• Uniform Superior Court Rule 24.2, emergency actions
• Form SC-26, Petition for Temporary Protective Order
• Form SC-15, Family Violence Ex Parte Protective Order
• Form SC-16, Family Violence Twelve Month Protective Order
• Form SC-22, Family Violence Three Year/Permanent Protective Order
• Form SC-25, Child Support Addendum to Family Violence Protective Order
• Supreme Court of Georgia, Superior Court standard forms