Child abuse and domestic violence will substantially change the dynamic of any divorce or family law proceeding. Evidence of abuse changes the focus of the proceeding from protecting an individual’s property to protecting an individual’s life. Abuse allegations complicate divorce and family law proceedings because, in addition to the civil proceeding, there is likely to also be a criminal proceeding. Any allegations of child abuse made against either parent will be taken very seriously by the court.
What legal action can I take to protect my child if I suspect abuse?
If you suspect your child has been abused, you should contact the police and an attorney immediately. The attorney will need to know the details of the abuse, including when and where the incident took place, whether there were other witnesses, whether the abuse is an ongoing issue, and if a police report was filed. All evidence of the incident should be turned over to the attorney. This evidence may include such things as: contact information for witnesses, photographs of injuries, police reports or other court documents. Your attorney will take emergency action to protect the child by requesting a temporary protective order (TPO) be issued by the court. If granted, the TPO will remain in place until the final divorce decree is issued. A TPO can be issued, without a hearing, by the court if the court finds the child is in immediate danger. O.C.G.A. § 19-13-3. The TPO may include any number of the following orders depending on the circumstances of your case.
- Order the abuser not to abuse or harass any family member
- Order the abuser not to interfere with travel or transportation
- Force the abuser to leave the home; possibly under supervision of the sheriff
- Force the abuser to provide alternate housing for the other family members
- Implement a restraining order that will keep the abuser a certain number of yards away from the children and their schools and residence
- Award the non-abusive parent temporary custody of the children
- Prevent the abuser from selling or removing any personal property, pets, or other items belonging to other family members, but which are under the control of the abuser
- Order law enforcement to assist in obtaining aforementioned property or pets belonging to other family members
- Prevent the abuser from cancelling or disconnecting utilities or children’s health insurance
- Award possession of a vehicle
A TPO should be filed with the superior court in the county in which the abuser lives. If the abuser does not live in Georgia, the TPO can be filed with the superior court in your county of residence or the county where the incident occurred. O.C.G.A 19-13-2.
Will my child have to testify?
Georgia courts place the interests of children above all else. In Georgia, courts will allow evidence of a child’s statements regarding child abuse to be admissible despite the fact that such testimony would normally constitute hearsay. In some cases, the court may allow the child’s statements to you to come into evidence without even requiring the child to testify. Documentation such as a police report will be helpful to your attorney to bolster your case.
What is the role of a Guardian Ad Litem?
A Guardian Ad Litem (GAL) is a court appointed guardian for the children. This person acts as “the eyes and ears” of the court. The guardian is in place to advocate for the best interests of the children, not to advocate for the wishes of the children. A guardian will likely be appointed during a custody proceeding where there are allegations of child abuse.
The guardian will expect to visit the residences of each parent, speak with the children and the parents, and will likely speak to third parties such as teachers, neighbors, grandparents, coaches, etc. The guardian submits a report to the court that details their findings. The court will usually follow the recommendations of the guardian.
How do allegations of abuse affect child custody?
Child custody, both during and after a divorce proceeding, is based on the best interest of the child. If a TPO is in place, this is simply a temporary order. Depending on what transpires during the proceeding, the final decree may or may not include the same child custody determination made in the temporary order. Generally, the court considers the best interests of the child to include having a relationship with both parents. However, the court will not place a child in danger, even if that means completely denying custody or visitation to one parent. Whether the abuser is allowed supervised visitation with the child will depend on the facts and circumstances of each individual case. For example, following an isolated incident, a parent who actively attends parenting classes and anger management training may be allowed supervised visitation.
What if my spouse is making false allegations of child abuse?
False allegations of child abuse can have lasting traumatic effects on both the children and the wrongfully accused parent. It is very difficult to disprove false allegations of child abuse. An attorney will be a vital ally in this situation. Your attorney can request that a GAL be appointed to the case to monitor the behavior of both parents. It is likely that the parent making false allegations of child abuse is mentally ill or depressed. Thus, your attorney may request a psychological evaluation of that parent, as well.
Conclusion
Child abuse is taken very seriously by all courts. The protection of children is given priority above all other interests. Child abuse should be immediately reported to the police and to your attorney. All evidence that documents the abuse should be turned over to the attorney so that he or she can take emergency action to protect the children and prevent any further physical or emotional harm.
If you are facing a child abuse issue in the contest of a divorce or family law case, call the police first. But afterwards, when you need to speak with an attorney, call us at 770-609-1247 to speak with one of our experienced family law and divorce attorneys.
