Pretrial diversion in Georgia

A term you hear increasingly in criminal litigation is “pretrial diversion”.  What is pretrial diversion?  In Georgia, in some cases a prosecutor has the authority to enter into a pretrial diversion agreement with a defendant to resolve his case.  Basically, a pretrial diversion agreement is where a defendant agrees to do certain things and upon completion his or her case will be dismissed and eligible for expungement/record restriction.

In Georgia, Prosecuting attorneys pursuant to O.C.G.A. 15-18-80 are authorized to create and administer a pretrial intervention and diversion program to provide an alternative to prosecuting offenders. Entry into the program is at the discretion of the prosecuting attorney.  A prosecutor usually has guidelines as to who may enter the program.  Factors a prosecutor may consider are the following:

• the nature of the crime
  • the prior arrest record of the offender
  • the notification and response of the victim

No prosecuting attorney may accept any offender into the program for an offense for which the law provides a mandatory minimum sentence of incarceration or imprisonment that cannot be suspended, probated, or deferred.  Therefore, DUI cases are not eligible for pretrial diversion since at least the 24 hour jail sentence is mandatory.  The prosecuting attorney is authorized to assess and collect from each offender who enters the program a fee not to exceed $1000 for the administration of the program, and to collect restitution on behalf of victims (this number has changed in the past and may very well change again in the future).

With that said, why with the defendant want to do a pretrial diversion?  The most common reason is that a pretrial diversion if completed will allow the defendant to have the record expunged/restricted.

If you have been arrested you should always seek the advice of an attorney before court.  Pretrial diversion’s might be a great way to resolve your case but speak to an attorney before you enter into such an agreement.

Legal disclaimer: The information contained on this page and this entire website is for informational purposes only and are not intended as legal advice.  You should always consult an attorney before taking legal action.  Reading this website or any website is not a substitute for a trained attorney.  This website does not create an attorney-client relationship between you and Shawn Bible Law Firm.  Mr. Bible serves all Northwest Georgia, including the cities of Ringgold, Fort Oglethorpe, Dalton, Lafayette, Trenton, Summerville and Rossville, in the counties of Catoosa, Walker, Chattooga, Dade, and Whitfield.

Posted on: 24 Oct, 2017          under: Criminal Law

How much child support will I have to pay?

Child support can be very complicated.  However, I will attempt to give some general information about how child support is set. Generally speaking, child support is set in Georgia based on the parties gross incomes.  Gross income is your income before taxes or other things are taken out.  The child support that is owed by either party is determined by putting each parties gross income into the Georgia child Support Calculator.  This calculator can be found on the Georgia Child Support Commissions website.

However, there are other factors that determine child support besides gross income.  The party who pays the children’s health insurance can be given credit for that expense. If one party has work-related day care expenses those may also factor into the child support amount. If you pay court-ordered child support for another child that is also if a factor in the child support calculation.

Other issues that come up in child support litigation are willful underemployment and the hiding of income.  An example of willful underemployment would be someone who has education or training that would allow them to make a high income but they choose employment where they make significantly less than they would if they used their education and training.  An example of hiding income would be someone who has a job where they receive cash under the table and they have failed to report that cash as part of their income.

So, child support litigation can be more complicated than simply putting both parties income into a calculator.  If you are facing a divorce or child support modification you should consult an attorney for agreeing to any child support amount regardless of which side of the case you are on.

Posted on: 23 Aug, 2017          under: Divorce, Family Law

Things have changed since my divorce and I think I need custody of the kids now. What can I do?

In any divorce involving children the court has to decide who will have physical custody of the children.  Generally speaking, primary physical custody means the parent that the children live with.  The parent not having physical custody has visitation rights.

But what happens if after the divorce is final things change?  Let’s say for example that a couple gets divorced with two children ages two and four.  At the time of the divorce the parties agree that it is best for the children to live with their mother and visit with her father.  However, what happens if after the divorce the mother becomes for whatever reason an unsuitable person to have primary physical custody of the children? For example the mother marries an abusive man or develops a drug problem.  In those circumstances, the father could file a petition to modify custody and argue that because of changed circumstances he is now the best person for the child to live with.

Another common example is a child turning 14 and deciding they want to live with the other parent. For example, a child turns 14 and decides for whatever reason they would rather live with their father. Georgia law states that in most situations a child over 14 can choose which parent they want to live with.  However, you still have to file a petition to modify custody and go in front of a judge to change the existing order.  It’s not enough for the child merely to decide who they want to live with and the court still has to issue an order.

There are some limitations for filing a petition to modify custody and the other side can fight the modification.  Therefore, if you think circumstances have changed enough and you think you need to go back to court then you should consult with an attorney first.

Posted on: 18 Aug, 2017          under: Divorce, Family Law

Modification of custody in divorce cases

When people divorce who have children one of the things the court has to determine is who has custody of the children.  Typically, the parents will share what is called joint legal custody.  However, the parent the child lives with will be awarded what is called primary physical custody. Generally speaking the parent with primary physical custody will be the parent that not only the child lives with but who gets to make most of the major decisions.  For example, the parent with physical custody will decide where the child goes to school and make other major decisions.  The parent with primary physical custody will also receive any tax benefits from having the child unless the parties agree otherwise.

However, after a divorce is final the court’s order can still be modified.  The court’s order can only be modified if there are changed circumstances.  This means that you can’t a year after divorce decide to go back to court and ask for custody unless you have a good reason to do so.  For example, if the parent who has custody develops a drug problem or gets arrested this would be grounds for the noncustodial parent the take action to ensure the safety of the child.  Other examples would be if one parent wants to move a significant distance away from the other parent or if the custodial parent marries an unsuitable person.  Another very common example is that the child upon reaching 14 wishes to exercise their right to elect which parent to live with.  There are of course many other reasons the noncustodial parent can go back to court and request to modify the original custody award.

If you think that circumstances have changed enough where a custody award should be modified then you should discuss it with an attorney and see what your options are.

Posted on: 1 Aug, 2017          under: Divorce, Family Law

What is an Ex Parte or an Emergency Order in the context of a divorce case?

In many cases, at the time the divorce is filed, the filing party may also ask a judge for an Ex Parte Order.  An Ex Parte Order is simply an order which is granted without the other party being present.  This is often done in cases where there are minor children.  The typical Ex Parte Order will give one party custody of the minor children and possession of the marital home pending the Temporary Hearing (the first hearing).  When an Ex Parte Order is granted, that order will be filed along with the Complaint for Divorce and served upon the other party at the same time as the Complaint of Divorce. Ex Parte Orders are usually only in effect for a few weeks until a Temporary Hearing where both parties are present and can be heard by the court.

I give several scenarios below of occasions when such an order might be necessary:

A Wife and mother of young children has been the victim of domestic violence during the course of her marriage and fears what actions her husband might take when served with a divorce. Among her fears are that her husband might abscond with the children and leave the jurisdiction of the court.

A husband and father of young children is afraid that his wife who has substance abuse problems will endanger the children by driving a motor vehicle while under the influence with the children and/or fail to properly supervise the children due to her substance abuse issues. The husband wishes to have court order so that his wife will have supervised visitation with the children and will not be allowed to drive a motor vehicle with the children in the car with her.

Husband and wife have a bad relationship and cannot agree on anything. They still reside in the same home and neither can agree on who shall remain in the marital residence during and after divorce proceedings.  One or both them believe it will not be possible for them to reside in the same home while the divorce is ongoing.

Above are just a few of the scenarios in which an attorney might request a Ex Parte Order prior to filing a complaint for divorce.

The party who is served with such an order will have a right to be heard by the court within a reasonable time.  The court may upon hearing testimony and evidence maintain the provisions of the Ex Parte Order or the court may modify its provisions after hearing both sides.

Posted on: 24 Mar, 2017          under: Divorce, Family Law

Legitimation and unwed parents

Nearly 40% of all children born in the United States are born to unwed parents.  So what happens when the parents of a child are not married and separate?  ? When a couple children divorces such decisions are made by the court and a parenting plan is either agreed to or set out by the court.  How do the parents decide who has custody, when the noncustodial parent shall visit with the child and who will provide for the financial needs of the child?

The biological father of a child who is not married to the mother may file a Petition to Legitimate that child with the court.  His Petition for Legitimation is a request to the court for an order declaring that the biological father is also the legal father the child and sets out what his legal rights to that child are.  For example, the court will decide which of the parent shall have custody of the child, how the noncustodial parent will exercise visitation and what amount of child support shall be paid by the noncustodial parent.  The mother of a child born out of wedlock may also file a paternity action and request among other things for support from the father.  If you are the father of a child born out of wedlock you should be aware of your rights and obligations to that child.

What happens if you have a child out of wedlock and then later Mary the mother?  Can that make you the legal father of the child? It can but only if you are in fact the biological father of the child.

The above are just some of the issues that come up when a child is born to unwed parents.  If you are a father to a child born out of wedlock you should consult an attorney about your rights and obligations.  Be aware that a father who does not exercise his right to parent a child may lose that right if he waits too long to act.  If you are a mother to a child born out of wedlock you are entitled to financial help from the father and should contact an attorney about your child’s right to support from the biological father.

Posted on: 2 Feb, 2017          under: Family Law

Grandparents Visitation Rights in Georgia

Does a grandparent have a legal right to have contact and visitation with grandchildren?  The answer is that without a court order grandparents have no right to visitation but they may request visitation from the court.

Georgia has a grandparent visitation statute which was passed to provide a way for a judge to grant a grandparent visitation rights with grandchildren.  The grandparent visitation statute was passed to encourage continued interaction between grandparents and their grandchildren if they can show that it is in the best interest of the grandchild.

So how does a grandparent file for visitation rights with the court?  A grandparent can file a petition for visitation rights with the grandchild under the following circumstances.  A grandparent may file for visitation rights when the parents are separated and the grandchild is not living with both parents. A grandparent may also file a petition for visitation when another relative has adopted the child and will not let the grandparent visit with the child.

So what does a grandparent have to show in order to get visitation rights?  First, the decision to grant visitation rights is for the most part in the discretion of the judge.  Things the judge will consider and balance when making their decision will be parental rights, the best interest of the child and if denying visitation with the grandparent would harm the child in some way.  With that said, it is up to the grandparent’s to show that it would be in the best interest of the child to visit with them.

Some things the court will look at closely is whether the child ever resided with the grandparents, whether the  grandparents have provided financial support and is there history of visitation between the child and the grandparent.  Most importantly  the Court will ask if denying visitation would harm the child in some way.  The court will also make sure that if it orders visitation that visitation will not interfere with school or extracurricular activities.

Of course there are many other factors the court will look at and the above is just a overview of grandparent visitation in a typical case.  If you are grandparent and are being denied visitation with your grandchild you may wish to discuss with an attorney your options.  Of course , before you file a petition in court try to work out your differences with the parent without going to court. However if all else fails then you may want to seriously consider forcing the parents hand with a petition for grandparent visitation.

Posted on: 15 Dec, 2016          under: Family Law, General

Family Law Discovery

One of the things that often surprises people divorce cases is the discovery process.  Most people are familiar to some extent with how courtroom procedure works based on what they’ve seen in TV and movies.  However, not many people are familiar with the discovery process until they have to go through it in a court case.

Discovery is a process whereby the parties in a divorce action or any civil action can obtain information and documents from the other party.  This can take basically four forms.  First interrogatories are questions put in written form and sent to the other party to answer.  The Request to Produce and for the Production of Documents is just what it says it is a request from one party to the other party for documents.  Of course, in the information age documents refers to much more than just paper documents. The third and less used is a Request to Admit.  Request to Admit are basely just questions sent to the other party requesting either an admission or denial.  For example, you would send a Request to Admit that one party has committed adultery.  Fourth, the parties may depose the other parties in depositions.

Typically, in an average divorce case discovery will begin sometime after the first hearing which is called a temporary hearing and before the final hearing in the case.  However, discovery request can be made at the start of the case as well.

Discovery can delay a case from being finalized. However, the real purpose of discovery is to allow the parties to get ready for trial.  Discovery allows an attorney to know the facts for trial and to prepare according.  The discovery process prevents one party from hiding information from the other party and allows the court to craft a more fair resolution to the case.

On a practical note, if you’re involved in any kind of civil case especially a divorce or family law modification action be aware of the potential of anything you put in written form may be asked for in discovery.  For example, be prepared to hand over all your financial records such as your bank records.  Be prepared that any text message you sent or  Facebook post you put up may be requested and put before the court.  So, be careful what you write.

Posted on: 12 Nov, 2016          under: Divorce, Family Law

New State Court in Catoosa County.

There is a new “State Court” in Catoosa County.  This new court will be located in the Catoosa County courthouse in Ringgold Georgia.  The State Court will handle all misdemeanor criminal offenses in Catoosa County with the exception of cases heard in the Ringgold City Court and the Fort Oglethorpe City Court.  In other words, if you are arrested for a misdemeanor in Catoosa County your case will be heard in the new State Court unless you are arrested in the cities of Ringgold or Fort Oglethorpe in which case your case will most likely be heard in that City or Municipal Court.

Until this Summer when the State Court went into effect misdemeanor offenses in Catoosa County were divided up between the Probate, Superior and Magistrate Courts. Below is a link about the new Court.

http://www.northwestgeorgianews.com/catwalkchatt/news/state-court-coming-to-catoosa-county-in-summer/article_e4ee696a-ce4e-11e4-9602-33756000c0f2.html

Posted on: 24 Aug, 2016          under: Criminal Law, General

Temporary Protective Orders (TPO)

Temporary Protective Orders

A TPO or Temporary Protective Order pursuant to the Family Violence Act is an Order a Judge can issue in cases where one person due to an act of domestic violence requests an order of protection.  However, not just anyone can request such an order.  Georgia law requires that there be a family relationship (as defined by statute) of some sort between the parties and an act of family violence must have occurred. Basically, it is an order telling one family member to stay away from another family member.  However, the definition of family member is defined in statute to include more than traditional families.

A Temporary Protective Order not only can order the offending party to stay away from you the Court can also award temporary custody of children, establish temporary child visitation, child support and order the offending party to receive psychiatric services.  A TPO can stay in effect for one year but can be extended upon notice to the other party after a hearing.

If you need an TPO contact an attorney.  However, if you are the victim of domestic violence and cannot hire an attorney resources are available to help you.  Contact your local Family Violence Center for help.  Here is a link to the local Family Crisis Center http://www.fccwdcc.org/.  However, remember if you are married a TPO is not a substitute for a Divorce.

If you have been served with a TPO do not contact in any form the person requesting the TPO Violation of a TPO can lead to criminal charges including the very serious felony “Aggravated Stalking”.  .  If you the TPO is unnecessary or based upon false accusations consult an attorney to represent you at the hearing.

Posted on: 1 Aug, 2016          under: Divorce, Family Law