Family Violence

Defining Family Violence
As used in this article, the term "family violence" means the occurrence of 1 or more of the following acts between past or present spouses, persons who are parents of the same child, persons living or formally living in the same household:
  • Any felony
  • Commission of offenses of battery, simple battery, simple assault, assault, criminal damage to property, unlawful restraint, or criminal trespass
The term "family violence" shall not be deemed to include reasonable discipline administered by a parent to a child in the form of corporal punishment, restraint, or detention.

Criminal Warrants

Under current law, there are very few instances when a criminal warrant for arrest can be issued immediately upon the application of a private citizen without the scheduling of a formal warrant hearing.

OCGA 17-4-40(b)(1).
If application is made for a warrant by a person other than a peace officer or law enforcement officer and the application alleges the commission of an offense against the penal laws, the judge or other officer shall schedule a warrant application hearing as provided in the subsection OCGA 17-4-40(b)(4). At the warrant application hearing the rules regarding admission of evidence at a commitment hearing shall apply. The person seeking the warrant shall have customary rights of presentation of evidence and cross examination of witnesses. The person whose arrest is sought may cross-examine the person or persons applying for a warrant and any other witnesses testifying in support of the application at the hearing. The person whose arrest is sought may present evidence and the cross examination of witnesses to the issue of probable cause. OCGA 17-4-40(b)(5) At the warrant application hearing, a determination shall be made whether or not probable cause exists for the issuance of a warrant for the arrest for the person who arrest is sought. If the judge finds that probable cause exists, the warrant may issue instanter.

Formal Hearing Process

Once all requirements are met and reviewed by the Chief Deputy Clerk, a formal hearing is scheduled before a Magistrate Judge. Notices are sent through the mail to the applicant and the accused.

Contempt of Court

As an applicant, you must go to the Magistrate Court on the date it is scheduled to be heard and bring with you any witnesses and documentary evidence to support you accusation against the alleged offender. If you do not appear for court, you may be cited for contempt of court and run a risk of a $200 and/or up to 10 days in jail.

Due Process Requirements
An essential aspect of this procedure is duty of the court to ensure that the accused has legal, due process notice of this hearing. If the court finds that an insufficient address was provided, or the mail was returned, as undeliverable, then the hearing will be canceled and the case will be dismissed due to insufficient information on application. The case may also be continued and placed on hold to allow time for the applicant to provide the court with a good address. Once this address is provided to the court, the case may be placed back on the calendar.

Dismissal of Applications

An application of warrant may be withdrawn with approval of Chief Deputy Clerk and upon payment of $30 dismissal fee and completion of dismissal form and/or affidavit. Dismissal of applications concerning family violence cannot be dismissed prior to court and can only be approved by magistrate court judge at the time of hearing.