Stalking - F.A.Q.s (Forms)

What is stalking? (MAG 60S)

A person engages in stalking according to O.C.G.A. 16-5-90(a) and 16-5-94(a) when: He or she follows, places 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.

 

Who can file a petition for a Stalking Temporary Protective Order? (MAG 60S)

Any person who is not a minor may seek a temporary protective order by filing a petition in the Superior Court clerk's office between the hours of 8 a.m. and 5 p.m. No specific relationship between the parties is required. Any person who is not a minor may also seek relief on behalf of a minor by filing a petition.

 

Where and when can I file my petition seeking a Stalking Protective Order? (MAG 60S)

Petitions for Temporary Protective Orders may be filed at the Detention Center, between the hours of 8 a.m. and 5 p.m. at:

Gwinnett County Detention Center
2nd Floor - Court Annex
2900 University Parkway
Lawrenceville, GA 30046

 

What happens when I file my petition seeking a Stalking Protective Order? (MAG 60S)

First, the petition must be filed with the Superior Court Clerk for the correct county. Most commonly, this will be a petition seeking protection from the Georgia resident. Therefore, the petition MUST BE FILED in the county where the respondent resides.

The Clerk will "docket" the case: enter the essential data onto the court's docket and assign a case number.

The clerk will then take the petition and the petitioner to go before the assigned judge.

The judge will first review the written petition.

Then the judge will administer an oath to the petitioner and hear sworn testimony about the case. The judge will ask the petitioner a number of questions under oath about the allegations and facts contained within the petition.

The judge must make a legal determination as to whether:

  1. The respondent has stalked the petitioner; and whether
  2. The petitioner needs protection against future stalking by the respondent.

If the judge determines there is insufficient evidence to support EITHER a finding that the respondent has stalked the petitioner, OR that the petitioner needs protection against future stalking by the respondent, the judge is legally required to immediately dismiss the petition.

However, if the judge finds probable cause for these two essential elements, then the judge will immediately issue a Temporary Protective Order in favor of the petitioner.

The file, together with the petition and the ruling of the judge, will be returned to the clerk of court for the docketing of either the dismissal order or the issuance of a Temporary Protective Order.

If a Temporary Protective Order has been issued, the petitioner will then be directed to the Family Violence Unit of the Gwinnett County Sheriff's Department so that the petition and the protective order can be promptly served upon the respondent. Also, the granted Stalking Temporary Protective Order will be posted on the Protective Order registry, and the GCIC and NCIC criminal databases.

 

How does the Gwinnett County Sheriff's Department help me with my stalking case? (MAG 60S)

Once you have obtained a Temporary Protective Order (TPO) under the Stalking Act, the Sheriff's Department has the responsibility for serving a copy of the order upon the respondent (person who is alleged to have committed the act of stalking). The efforts to locate the respondent will begin during the shift on which the order is received, and the Sheriff's Department will continue to attempt to serve the order until they are successful, or the time period for the order expires. Therefore, if you have additional information that can assist the Sheriff's Department in locating the respondent, please contact us as soon as possible at (770) 822-8200. The deputies have the responsibility of notifying the respondent of the existence of the order, and may read the order aloud to the respondent. This assures you that the respondent not only receives the order, but also is aware of its contents.

Gwinnett County Sheriff's Department

Main Telephone Number: 770-822-3100

Warrant Division: 770-822-3110

Civil Process (Monday-Friday 8 am till 5 pm) 770-822-8200 (After 5 pm) 770-822-8210

 

In what county should I file my petition seeking a Stalking Protective Order (MAG 60S)

If the respondent is a Georgia resident, a stalking petition must be filed in the county where the defendant resides. A stalking protective order is a civil proceeding and the Georgia Constitution requires that it be filed in the county where the defendant resides.

If the respondent is a non-Georgia resident:

  1. For a Georgia court to have jurisdiction, the respondent has to have committed an act of stalking within the State of Georgia, OR has committed an act of stalking outside the State of Georgia, having an effect inside the State of Georgia.
  2. To file an action against a non-resident in the Superior Court of Gwinnett County, the petitioner must be a resident of Gwinnett County, Georgia; OR the petitioner is a resident of the State of Georgia and the act of stalking committed by the respondent occurred in Gwinnett County, Georgia. (The same rules apply to plaintiffs who reside in other Georgia counties for filing in their Superior Courts against a Georgia non-resident.)

 

What is the court procedure after I am issued a copy of the Stalking Temporary Protective Order? (MAG 60S)

Within ten (10) days of the filing of the petition under this article, or as soon as practical thereafter, but in no case later than 30 days after the filing of the petition, a hearing (where both petitioner and respondent may be present and heard) will be held at which the petitioner must prove the allegations of the petition by a preponderance of the evidence. 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. (This does not apply to Gwinnett County, as the Gwinnett Judicial Circuit only contains one county.)If a hearing is not held within 30 days, the petition shall stand dismissed unless the parties in writing otherwise agree AND this extension is approved by court order.

 

What should I do if I need to file for a Stalking Protective Order after normal business hours, or on a weekend? (MAG 60S)

A civil Stalking Protective Order is a civil proceeding. That means it must be filed just like any other civil case during the normal business hours of the Clerk of Court. You cannot file a petition seeking a civil Stalking Protective Order after the normal business hours of the office of the Clerk of Court. If you are being stalked at anytime, including during normal business hours, you should always first consider calling 911 and seeking immediate law enforcement assistance. There are two remedies for stalking cases: a criminal arrest or a civil Stalking Protective Order. You may consider either of the these remedies, or both of them.

 

In addition to the parties, who will have copies of a Stalking Temporary Protective Order? (MAG 60S)

The parties who attend the hearings will be provided copies at the conclusion of the hearing. The Superior Court Clerk's Office will retain the original. The Sheriff's Department will retain a copy of the Temporary Protective Order as long as it remains in effect. The victim in the case should consider making additional copies to keep at home, work, with family members and in the victim's vehicle. Copies should be readily available to present to law enforcement if a violation of the protective order occurs. Additionally, the Clerk of Court will transmit a copy of the protective order to the Protective Order Registry. By doing so the contents and existence of the protective order will be available to any law enforcement officer in any state via GCIC or NCIC criminal databases.

 

How long can a Stalking Protective Order be in effect? (MAG 60S)

There are three different Stalking Protective Orders, each with its own time periods of protection.

  1. The intial Temporary Protective Orders will remain in effect only until the time of the first hearing, or until the lapse of thirty days, whichever first occurs. Remember, unless the parties agree in writing, and the court approves by written order, all Temporary Protective Orders expire at the end of the thirty days. That is why the hearings are held as soon as possible after the Temporary Protective Order is granted and after the Respondent has been served. This is also why it is so important for the petitioner to give accurate information to the Sheriff's Department on where the Respondent can be served.
  2. Then, if the judge finds probable cause at the next hearing to keep the Stalking Protective Order in place, it can be extended for a period of 12 months.
  3. Prior to the expiration of the 12 Month Stalking Protective Order, upon the written motion of a petitioner and with notice to the respondent, and after a hearing, the Court in its discretion may convert a 12 Month Stalking Protective Order granted under this Code section to a three (3) year order or a Permanent Stalking Protective Order.

 

Are there any checklists that will help me present my case? (MAG 60S)

Not that we know of at this time, which is one of the reasons we always recommend that parties seek legal counsel. If you have to represent yourself, the pleadings provide you with a rough checklist of the issues that you must present in court. Read the petition carefully. The legal elements set forth within the petition give you guidance as to the legal issues that the court will decide.

You may also wish to come to court and observe other similar hearings prior to your court date.

This is merely a broad overview of some issues you might consider in presenting your case. It is not remotely close to a substitute for having competent legal counsel represent you.

There are two ways to get a 6-12 month Temporary Protective Order (TPO).

  1. Consent:     Both parties agree that a TPO be issued and agree to the conditions of the TPO. We do not recommend that parties involved in a violent relationship attempt to mediate the case. Consent is appropriate only if the parties are represented by counsel.

  2. Hearing:    In order for a judge to issue a TPO the petitioner has to prove two things:

    1. The respondent committed an act of stalking.

    2. The petitioner needs protection against future stalking by the respondent.

The respondent would be trying to prove that these events did not occur or that it is unlikely that the petitioner needs protection. If the petitioner and respondent are unable to consent to the TPO and the petitioner chooses to have a hearing then the following information will help the respective parties establish his/her case for a TPO at the hearing.

The petitioner has the burden to prove to the court, to a preponderance of the evidence, that it should grant the TPO. In other words, it is up to the petitioner to convince the judge that the respondent stalked the petitioner, and that the petitioner needs protection against future stalking by the respondent.

Normally, most of the same legal issues apply to both parties. The parties are just on the opposite side of the proof.

The victim, or petitioner goes first. During the victim's testimony, the victim should provide the following:

State the victim's name, the respondent's name, and how they know one another.

If jurisdiction is an issue, state the respondent's address including the county.

Start with describing the most recent stalking act including the date and time; who was present; what was said; describe any physical contact.

Describe two stalking acts that happened close in time to the most recent act described above.

Tell the judge why you think you need a TPO.

Witness Testimony:

Witness testimony should include the following:

Name and relationship to the parties.

Date she/he witnessed stalking.

Describe what she/he witnessed.

    Tips - Questioning Witnesses on the Stand:

  • Witnesses can only testify to matters of personal knowledge. For example, Witness X cannot testify that Jane Doe told witness X that Jane Doe saw the respondent push the petitioner. However, Jane Doe can testify to what she saw.
  • You cannot ask your own witness leading questions. Leading questions are questions that strongly suggest an answer or likely to supply a false memory. For example, instead of asking the witness did you see John Doe harass Jane Doe on March 10, 2005, ask the witness what did you see on March 10, 2005.

 

What help and protections can a Stalking Temporary Protective provide? (MAG 60S)

A stalking temporary protective order can:

  • Temporarily restrict the respondent from directly or indirectly harassing and intimidating the petitioner.
  • Temporarily restrict the respondent from approaching within a certain distance from petitioner.
  • Temporarily restrict the respondent from any contact with the petitioner or petitioner's immediate family via any means of communication.

Local law enforcement will receive a copy of the Temporary Protective Order. Law enforcement officials throughout the state of Georgia, as well as law enforcement officials can access and verify the terms and duration of the Stalking Temporary Protective Order once it is listed on the TPO registry, GCIC and NCIC databases.

 

In a stalking case, what can constitute contact? (MAG 60S)

Most restraining orders restrain contact as follows: "Respondent shall have no contact of any type, direct or indirect, or through another person, with the Petitioner or the immediate family of Petitioner, including but not limited to telephone, pager, fax, e-mail, mail, or any other means of communication. Furthermore, Respondent shall not follow Petitioner or place the Petitioner under surveillance."

 

In a stalking case, what is the definition of harassing and intimidating actions by the Respondent? (MAG 60S)

    These terms mean:
  1. a knowing and willful course of conduct
  2. directed at a specific person
  3. which causes emotional distress
  4. by placing such person in reasonable fear for
  5. such person's safety or the safety of a member of his or her immediate family,
  6. by establishing a pattern of harassing and intimidating behavior, and
  7. which serves no legitimate purpose.

A court may not issue a stalking order based only on a single act. The petitioner must prove a course of conduct of harassing and intimidating behavior.

 

What issues may the court consider when making a determination as to whether a Stalking Protective Order should be granted or denied? (MAG 60S)

Additionally, the court must find that stalking has occurred in the past and that stalking may be reasonably expected to occur in the future.

To defind stalking, the court must make a finding that the petitioner fears the respondent, and that the petitioner's fear is reasonable.

Evidence of petitioner's reasonable fear, coupled with the actions of the Respondent, may or may not tend to prove the likelihood that stalking will recur again in the future.

 

Can I subpoena an out-of-state witness to come to Georgia and testify? (MAG 10 SU)

Yes, however, it might become too costly and too difficult.

The person must be served inside the state of Georgia. And, when a witness resides outside the county where the testimony is to be given, service of the subpoena, to be valid, must be accompanied by tender of the witness fee for one day's attendance $25.00 per day plus mileage of $0.20 per mile for traveling expenses for going from and returning to his or her place of residence by the nearest practical route.

Tender of fees and mileage may be made by United States currency, postal money order, cashier's check, certified check, or the check of an attorney or law firm. See generally O.C.G.A. 24-10-24. Georgia General Assembly Website.

 

 

Forms