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Much thanks. The appellate court ruling was copied verbatim. I couldn't find anything overruling it, but I will look again. It seems to be a fairly well-entrenched doctrine in GA, but then again GA does A LOT of things differently than the rest of the courts in the country!

You have raised an interesting point here:

Soc wrote: >>You would need to show that petitioner was not in fear of you at the time she filed the complaints. If you have objective third party proof that petitioner was in your proximity, by her own intention, and not afraid immediately after filing the complaints (like within a few hours), and especially proof that this lack of fear occurred in between the filing of the two complaints, that might do it.


In fact, this MIGHT just be provable.

On the day in question of the charge, we had both been summoned to appear in court for a hearing; she was requesting attorney's fees for an action that she had brought against me... and lost. On the day of court, I decided to go ahead and offer her HALF of the fees as a gesture of good will. The judge entered and said he would give everyone a few minutes to try and settle their case. He then left. In open court, I approached her, handed to her an envelop containing a check and sat back down. There was no note or conversation between us, and although a deputy bailiff was present, she did not voice a complaint. When court resumed, we both agreed to the judge that the issue was settled satisfactoraly, and I left. About 30 minutes later, I got a call from her telling me that she was willing to discuss visitation for Christmas and that she would wait for me at the law library of the courthouse. My parents were with me when I received the call. I returned, and we quickly worked out a schedule and peacefully parted company.

A few days later, the charge came. Shortly after our meeting in the law library, she complained that I approached her in open court and handed her an envelop, in violation of the order. There was no mention of our private meeting or anything like that... just the handing of a check in the courtroom. The prosecutor was disqusted with the charge when she read it and immediately submitted the nolle prosse.

1 - So, on the basis of what you said, is it credible to believe that a person who is summoned to appear in court on behalf of their own action to collect money was genuinely feared for her safety by accepting the very check they wanted to collect in the first place? If so, then why turn around a half hour later and call the very person that placed them in "reasonable fear" back to the courthouse to meet with them again in person and in private (where, unlike open court, no bailiff was even present)? She didn't even file the charge until AFTER the private meeting which she, herself, solicited! What do you think. Soc ... a reasonable chance to "prove a negative"?

(I promise this is the last question I'll bother you with on the matter!) :)

Much thanks. The appellate court ruling was copied verbatim. I couldn't find anything overruling it, but I will look again. It seems to be a fairly well-entrenched doctrine in GA, but then again GA does A LOT of things differently than the rest of the courts in the country!

You have raised an interesting point here:

Soc wrote: >>You would need to show that petitioner was not in fear of you at the time she filed the complaints. If you have objective third party proof that petitioner was in your proximity, by her own intention, and not afraid immediately after filing the complaints (like within a few hours), and especially proof that this lack of fear occurred in between the filing of the two complaints, that might do it.


In fact, this MIGHT just be provable.

On the day in question of the charge, we had both been summoned to appear in court for a hearing; she was requesting attorney's fees for an action that she had brought against me... and lost. On the day of court, I decided to go ahead and offer her HALF of the fees as a gesture of good will. The judge entered and said he would give everyone a few minutes to try and settle their case. He then left. In open court, I approached her, handed to her an envelop containing a check and sat back down. There was no note or conversation between us, and although a deputy bailiff was present, she did not voice a complaint. When court resumed, we both agreed to the judge that the issue was settled satisfactoraly, and I left. About 30 minutes later, I got a call from her telling me that she was willing to discuss visitation for Christmas and that she would wait for me at the law library of the courthouse. My parents were with me when I received the call. I returned, and we quickly worked out a schedule and peacefully parted company.

A few days later, the charge came. Shortly after our meeting in the law library, she complained that I approached her in open court and handed her an envelop, in violation of the order. There was no mention of our private meeting or anything like that... just the handing of a check in the courtroom. The prosecutor was disqusted with the charge when she read it and immediately submitted the nolle prosse.

1 - So, on the basis of what you said, is it credible to believe that a person who is summoned to appear in court on behalf of their own action to collect money was genuinely feared for her safety by accepting the very check they wanted to collect in the first place? If so, then why turn around a half hour later and call the very person that placed them in "reasonable fear" back to the courthouse to meet with them again in person and in private (where, unlike open court, no bailiff was even present)? She didn't even file the charge until AFTER the private meeting which she, herself, solicited! What do you think. Soc ... a reasonable chance to "prove a negative"?

(I promise this is the last question I'll bother you with on the matter!) :)

Thank you again for the input. I understand most of what you're saying, but have just a few questions in order to  sufficiently explore this material, if you wouldn't mind indulging me just a little bit more:

>
>Fails, because the judge didn't need any evidence beyond the
>ex's statement of fear in order to convert the preliminary
>injunction into a permanent one, unless you can show some
>other hardship. But, as I said, the injunction apparently does
>not keep you from your child, so there really is no other
>hardship.

I'm confused here. For the years I've been reading this board, it is reiterated over and over again that the wording of an order is vital to its meaning, that nothing can be inferred from what isn't explicitly stated, and nothing can be removed from something that is.

The order explicitly states:

"The Respondant has knowingly and willfully violated OCGA 16-5-90 and placed the Petitioner in reasonable fear because SEE EXHIBIT A."

"Exhibit A" is the two written charges. (This is a "form order" with checkmarks and blanks. The reason, stated as "SEE EXHIBIT A" was typed onto a blank space.) This statement is the SOLE justification given in the order for its issuance. Following it, the order goes right into "Thus, the Respondant is hereby enjoined and restrained etc..."

1 - In other words, the Order states a fact that does not exist; I DIDN'T violate the order, as the dismissals make clear. And the Petitioner made no other "statement of fear" or other evidence in her pleading whatsoever, and no other statement or basis whatsoever is acknowledged in the order. Are you suggesting that ANOTHER "statement of fear" is inferred in the order without it actually being stated? Thus, does this order mean what it says, or does it mean something else?

2 - If it says that I "knowingly and willfully violated" the temporary order, but then it turns out I did not, then the order has a fatal defect, does it not? The issue was pending in another court at the time the order was written, and the allegation (being adjudicated in a different court altogether)  could not be DISPROVEN at the time of trial.

>
>Under the doctrine of res judicata, a final judgement is
>"final" after the time for reconsideration or appeal passes.
>Parties cannot reopen the judgment for subsequent relitigation
>based upon new facts, except in cases where a person's liberty
>interests are at stake (i.e., they're in jail).
>

3 - You're suggesting here that the law makes a provision for issuing a protective order but not for actually vacating one? I thought any order with a NON-AMENDABLE DEFECT could be vacated. In this case, the order states that I "willfully and knowingly" violated the order. when in fact, I had not. (The mere allegation of contempt does not constitute actual contempt.) Had the charges resulted in a conviction, or, had the order been written following a conviction rather than mere allegations, there would have been no conflict in the order. As such, once the charges were dismissed, there was no longer any factual claim in the pleading which actually existed, and, by claiming a fact that later turned out to be false, the statement upon which the order is based becomes defective. Correct?

>Here, because respondent is arguing that petitioner is not
>afraid of respondent anymore, you are introducing a new fact,
>after the time for appeal and reconsideration has passed, thus
>the evidence is barred by res judicata.
>

4 - The lack of fear of the Respondant (and the evidence showing such) was not a fact available at the time of trial. Indeed, if her conduct demonstrating a lack of fear all occurred AFTER the issuance of the order, how could it have been subject to discovery and argued at trial at all? It is as if she waited for the order to made, and then acted as if she were never afraid at all. This is what I mean when I say her conduct "vitiates" the effect of the order. Thus, can't this new evidence, based ENTIRELY upon the conduct of the Petitioner FOLLOWING the issuance of the order (namely, the letters, emails, witness of public behavior with the Defendant, phone calls, etc) be used as a basis for a motion to terminate the order on the grounds that she isn't really afraid and that the evidence proving such simply didn't exist at the time of the trial?

5 - Finally, in regards to the issue of res judicata, I recalled having this citation in my notes from the Ga Appellate Court. Doesn't it seem to say that the court which issued the order may also review and/or vacate their own order at their own discretion and for no other purpose other than in the interest of justice?

"Courts of record retain full control over orders and judgments during the term at which they were made, and, in the exercise of a sound discretion, may revise or vacate them. Such discretion will not be controlled unless manifestly abused. [Cits.] During the term of court at which a judgment is rendered the court has power, on its own motion, to vacate the same for irregularity, or because it was improvidently or inadvertently entered. [Cit.] The superior [or state] court, as a general rule, has plenary power over its orders and judgments during the term at which they were rendered, and may amend, correct, or revoke them for the purpose of promoting justice. [Cit.] A motion to set aside and vacate a judgment cannot be determined by any fixed rule, but depends on the circumstances of the case, and exercise of the power to vacate a judgment rendered during the term will not be controlled on review unless abused. [Cit.] The plenary control of the court over orders and judgments during the term at which they were rendered extends to all orders and judgments [including judgment by default] save those which are founded upon verdicts. [Cits.]" Whitlock v. Wilson, 79 Ga. App. 747 (54 SE2d 474) (1949); Martin v. Gen. Motors Corp., 226 Ga. 860 (1) (178 SE2d 183) (1970); Hunter v. Gillespie, 207 Ga. 574, 575 (63 SE2d 404) (1951); see Holcomb v. Trax, Inc., 138 Ga. App. 105 (225 SE2d 468) (1976).

Thanks so much again. Please don't get frustrated with me! It's important to me that this order be dropped and I am exploring every avenue because the mother is, indeed, using it as a sword instead of a shield, and that is a thing which causes me to always live in fear. I am unable to call the house to speak with my daughter, and whenever I send her a letter, I am in fear that the ex may concoct something to say I was really trying to contact her, instead. One false accusation can affect somone for months, and even a so-called "remedy" through tort litigation can take years. So again, thank you for indulging me.

Thanks for the input.

The ex petitioned for the temporary order to become permanent AFTER she filed the two charges but BEFORE the charges were actually dismissed. The charges were brought in a different county than where the order was obtained. Thus, my point was that a permanent order was issued on the basis that the ex filed two charges. Evidence of those two PENDING charges was the only evidence considered. Had it not been for the ex making those two charges, the judge would have had no basis for making the order permanent. (A "reasonable fear" is all that is necessary for a 12-month temporary order, but clearly the standard is higher for a permanent one, else it would have been made permanent from the beginning, correct?) From a legal standpoint, the basis for the permanent order wasn't a claim that the petitioner had a reasonable fear. Rather, it was that the allegation that the order itself had been violated. After the charges were dismissed, there existed a significant change in circumstances under which the petitioner's plea was no longer sustainable on the basis on which it was awarded, and the facts of the case no longer supported the required finding.

1 - Does this argument seem succeed or fail?


There is another basis for the order to be vacated, and that is the the petitioner herself undermines and vitiates any claim of "reasonable fear" by continually initiating, soliciting, and enjoining contact with the defendant. Remember, this is a non-violent "stalking" order in which she specifically asks that the defendant be prohibited from having contact with her. But then she turns around and continues to contact the defendant, with no apparant fear whatsoever. I have dozens of phone text messages and voice mails, letters and emails, and witnessed incidents of her inititating friendly contact with me in public that completely undermine the very intent of the order. On one occassion, she freely entered a restaurant where I was already dining and sat down and joined me. Does this sound like someone who has a reasonable fear.

2 - Thus, does undermining and vitiating the intent of an order in this fashion constitute a reasonable grounds for vacating?

Finally, there are the nature of the two charges. Two charges in three months. Both dismissed outright by the prosecutor. (When I say that they concluded "in my favor", I mean that there was no plea deal for the dismissal; I did nothing for them to be dismissed.) Indeed, there is a current lawsuit pending against the petitioner for malicious prosecution and intentional infliction of emotional distress on one of the charges. However, two dismissed charges in three months, along with her own tendency to freely contact me as the mood strikes her, appears to me to be an abuse of the of the order which she obtained. Certainly, the court did not intend to empower the petitioner to file charges against the defendant whenever she wished, even if it does leave her vulnerable to tort litigation later on. I now have an even greater fear -- and greater expectation - that the petitioner may make a unjustified claim whenever it suits her against me than she, herself, seems to have fear of me.  

3 - Thus, and finally, does this type of abuse of an order constitute a reasonable grounds for vacating? If not, how many charges, how many trips to jail, and how many dismissals are necessary before a judge begins to think that maybe the order isn't such a good idea after all? (Not rhetorical.)

Much thanks. I hope I've stated my "case" a little better this time. It's tough sometimes dealing with and communicating about bizarre and unreasonable behavior.

I have an ex who practices parental alienation with the best of them. As part of her effort, she obtained a Temporary Protective Order for stalking in response to my many requests to see my child, whom she was withholding from me. The judge was just disinteresting enough in the hearing to grant a 12-Month order.

Following the issuance of the 12-Month TPO, my ex filed two separate charges against me, alleging two separate violations of the order. While I faced these, she petitioned to have the 12-month order made permanent. The sole basis of her motion (and the sole evidence) was the 2 charges she had filed against me. On the same basis (explicity stated in the order), the judge made the order permanent.

In both instances of allegations, my ex lacked probably cause to bring the charge. Georgia law defines probably cause for someone to bring a charge as something that reasonable person would believe constituted a violation of the order. The dismissal constitutes a prima facie lack of probably cause, but it can be overcome. In this case, it can be shown that, although the ex had an attorney and had actually been with him just hours before she filed the charge, she failed to seek his council on the matter, perhaps even intentionally, because she was motivated more by malice than justice. In fact, the dismissal order itself incredibly includes statements made by her attorney which undermined her claims and shows that she filed the charge without his advise or approval. Due to one of her charges, I spent two weeks in jail.

Followed the issuance of the Permanent Order, both of the charges against me were dismissed in my favor.

1 - Due to the basis of both the motion and the order, namely the two charges against me, isn't it logical that the subsequent dismissal of these charges represents a substantial change in circumstances in which the material facts of the case no longer represents the required finding? And, as such, is there not solid grounds for a termination of the order on this finding?

2 - In addition to the above-stated reason, I have other concerns about the continuation of the Order. First, my ex continues to undermine the order herself by calling me, emailing me, sending me text messages, approaching me in public, and fraternizing with me. In all instances, she initiates the contact and it is unsolicited. (I am very particular not to violate the order myself.) Doesn't this, also, vitiate the order to a point beyond further justification of it? My other concern is that the repeated charges which she has brought, and which have been dropped, demonstrate a pattern of abuse of the order. Would not a judge, too, share these concerns and agree, along with #1 above, agree that the order should be terminated?

2 - Lacking probably cause on one of the charges, and having spent two weeks in jail because of her charge, is there not a good cause of action for a false imprisonment lawsuit against the ex?

3 - The order says that I am not to contact, directly or indirectly, my ex or her "immediate family". (It's a "form" order and that's all it says in regards to the matter, essentially.) How does that affect my relationship with my daughter? For the purposes of this order, am I also prohibited from contacting her? And, if so, wouldn't the fact that it is a permanent order for all intents and purposes constitute the termination of my parental rights without any hearing of fitness? Certainly such wording refers only to her OWN immediately family (parents, siblings, etc) without affecting my relationship with my daughter.

Much thanks

By the way, thanks for the musicial analogies! They speak volumes to the educated! You're Schoenberg reference made your point with crystal clarity! If only the judge were a musician!

Thanks, as always. The easiest route - filing for paternity in GA - is simply the most threatening, as well. The mother has already said she would contest it, claiming it to be against the child's best interest on the basis of child molestation (of course I havn't molested my own child, but who wants to be called a child molester is public?). Even proving myself innocent may take years, especially if the mother wants to delay the proceedings as much as possible.

When you know at least some of these terrors that lie ahead on a certain path, all other avenues simply have to be exhausted first. And, once again, I cannot overstate the malicious nature of this adversary.

Again, thank you. I will consider all points brought up here.

That's a good point. In theory it WOULD be easier. Like many cases around here, however, there's much more to see than at first evident.

The mother, inexplicably, has already made it clear that she will actually fight ANY "legitimation" request, including making allegations of child molestation. Unfortunately, such a request, aside from being totally demeaning, is entirely at the discretion of the judge, and if I stand up in front of the judge on the wrong day like that, I can find myself PERMANTLY DECREED as having no parental rights whatsoever. (Let's NOT say that the judge would so this out of any gender bias. I really believe that in most cases, such gender bia does NOT exist. However, we might entertain the possibility that the judge might not have the resources to give the case as much time and consideration as is needed to see that I am a good father, and thus would play a "better safe than sorry" game, doing what the mother requests.) In addition, once legitimated, the burden would be for me to prove a substantial change of circumstances just to establish JOINT custody, as even the father of a child who has legitimated their child has no custodial rights whatsoever. The mother of our child doesn't LOOK the part of a bad mother enough to go that route and obtain any custody on the basis of "signficant change of circumstances".

I have, unfortunately, had to accept that, for the meantime, this mother is going to get her way. That is why I am looking into the potential of having my parental rights recognized by GA through an administrative procedure that does not involve the mother. THEN, I could argue parental interference and intentional infliction of emotional distress in a separate tort action that could possibly bring about some negiotated settlement on the custody/visition issue.

One other interesting aspect of this case involves this mother's own father, who is in the middle of a divorce himself. Turns out that, in anticipation of being served divorce papers, he transferred all of the marital property (including a historic antebellum mansion), as well as ALL of his business dealings (he had his own real estate company) over to his daughter. While I don't know all of the legal ramifications of such action (the legitimacy of the transfers is still being argued in divorce court), there are other issues of her father's business in which she has become involved. In particular, neither he nor his business have even filed an income tax return in nearly twenty years. In addition, there is substantial evidence that shows that after the transfer of these assets, she wrote to him many hundreds of thousands of dollars worth of checks from the business account (in her exclusive control) to him, listing it as a - (cough) -  "loan repayment".  We have reason to believe that the IRS has begun pursuing him. Unfortunately for her, she's left "holding the bag".

So, I have other incentives, you see, for insuring that my legal status as a father be recognized through procedures not directly involving the mother, which will be in place should the mother find herself incarcerated for other reasons. And maybe, facing a civil lawsuit and custody lawsuit from me, while becoming a co-defendant in a divorce suit, and possibly being pursued by the IRS as well, she'll simply find the easiest settlement with me possible and simply sign some papers for visitation which we can take to a judge.

Mind you, I've only scrathed the surface, and I can't everstate this mother's determination to win in her conflict with at any cost (including the child), but you might be getting the picture why a little "wheel spinning" might be an unfortuante but necessary part of this little problem.

To Soc....

If you are still there, I know this post has gotten "off" a little from the standards of questioning. But if I may ask one more relevant question in tihs thread...

1 - You mentioned the 11th Amendment and declaratory judgments. If I take your meaning correctly, did you suggest that I file a lawsuit in federal court for a declaratory judgment for full recognition of my parental rights as established by VA?

2 - If so, would the state of GA be the "defendant"? Would a particular state agency need to be identified, or simply the state itself?

3 - This doesn't seem like something GA would want to fight. After all, they have no incentive to deprive me of my legal rights. Rather, they merely lack the procedure to clarify my already-established rights in this state. (After all, the public policy of the state of GA strongly favors the presumption of legitimation.) Thus, might I expect GA to simply "settle" outside of court rather quickly?

Thank you!

Much thanks for the feedback. I'm having to explore all options because the mother is so determined to keep me from our child.

I was intitially discouraged by your first post, so, after reading it, renewed my efforts to find someone at the state level who might be of some help on the matter. Fortunately, and surprisingly, I may an avenue with the Dept of Vital Records, who handles the state's paternity registry. The person in charge of legal affairs with the department admits that they have never had an inquiry such as mine, but acknowledged an understanding of the difference between legal paternity (parental rights) and simple biological paternity. And they seemed willing to investigate what "procedures" might be followed so as to have an out-of-state acknowledgment recognized in GA. (They agreed that going through GA's "legitimation" would consist of going to court and asking for permission to have what was already fully established.)

Anyway, we'll see how that works out. Seems that if it is handled administratively within the state of GA, I will have an "enforcable" document on which to state a claim, whether for domestic or liabilty reasons. So, thanks for lighting that spark under my bottom!


And thanks again for the feedback in general. No, I've never had anything to do with the law before. I'm a musician and a photographer. But I understand and retain many of the things I read rather efficiently. (As a classical musician, I'm constantly memorizing many, many pages of music, for instance.) I hope some of this will come in helpful. I'd much rather negotiate a settlement with her attorney, but I have to have something with 'teeth' to take in with me. Hence, the question about a potential liability suit for parental interference.

Thank you for your help. I get the point that IT'S NOT A JUDGMENT.

My apologies for using the 'n' word. It was not intended as derogatory remark so much as a description of what I believe to be an existing borderline personality disorder. I will not use the description again. :)

Insofar as Georgia recognizing my legal status as a father, another member in these forums suggested I look up US Pub. L. 103-66, Aug. 10, 1993, 107 Stat. 312— Omnibus Budget and Reconciliation Act of 1993.  (Apparantly, I am not the first person who has had to deal with Georgia in this respect. Ga seems to be taking otherwise legal father-child realtionships from other states and essentially 'delegitimizing' them.).

"Section 466(a)(11) requires States to have laws and procedures under which the State must give full faith and credit to a determination of paternity made by any other State, whether established through voluntary acknowledgment or through administrative or judicial processes."

1 - If the original state's administrative process established both biological and legal paternity, then it would seem that this federal law sort of requires GA to afford it the full legal weight and effect it would enjoy had it been rendered in the forum state. Does this seem to be the case? (Obviously, and according to the OBRA, the state must have some procedure. I have enquired endless to various state agencies, including the Dept of Social Services & Human Resources and the State Attorney General's Office and they are clueless.)

2 - In my original post, Question #3 was disregarded on the basis of the song "it's not a judgment."  But if GA is required to fully recognize the establishment of paternity from another state, does the argument concerning the wording of GA's definition of a "child born out of wedlock" have any merit?

I understand that this federal law seems to intercede in areas normally considered soveriegn states' rights. However, the 1993 OBRA provides federal funds to states (specifically, matching dollars for state-collected child support), and, as we know, states frequently relinquish soverienties in order to participate in lucrative federal spending programs.

Thanks again. Any insight will be helpful!