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Permanent protective orders may no longer be so permanent


The Georgia Supreme Court issued a decision last week in the case of Mandt v. Lovell which may endanger survivors of domestic violence.  Under Georgia law, OCGA 19-13-4 allows the court to convert a temporary protective order (TPO) into a permanent protective order (PPO).  Typically, TPO’s are granted for a period of 12 months.  However, “upon the motion of a petitioner and notice to the respondent and after a hearing, the court in its discretion may convert a temporary order granted under this Code section to an order effective for not more than three years or to a permanent order.” OCGA 19-13-4(c).  While this code section is admittedly sparse on details regarding when an order should be made permanent, courts generally have required a showing that the respondent has violated or threatened to violate the TPO such that ongoing protection is needed.

In Mandt, the court considered whether a PPO could be modified.  Although the general rule prohibits modification of final orders after the expiration of the term of court in which the order was entered, the court found that an exception should be carved out in family violence cases.  Justice Melton explained: Because the order directly impacts upon the interaction of members of a domestic unit, conceivably in perpetuity, a family violence protective order should remain subject to a potential future burden and benefit analysis.  The burden of prohibiting an individual from interacting with his or her family or domestic unit must be balanced with the benefit of prospectively stopping family violence.  This balance between these extremely important factors does not become immutable at the moment a PPO is entered. For that reason, a PPO should not be impervious to future modification if the underlying balance has substantially changed. 

To reach this conclusion, the court had to ignore the plain language of the statute which only speaks to increasing the duration of an order.  The court simply stated that it would be “myopic” to think the Legislature did not intend for a court to be able to decrease the length of an order.  When I took the Law of Legislative Government at UGA, Prof. Perry Sentell taught us the basic rule of statutory construction that you look at the plain language of the statute and apply the usual and ordinary meaning of the words used.  I do not see how the plain language of OCGA 19-13-4(c) can mean anything other than protective orders can only be increased in duration.

The court did provide a standard for the modification of a PPO.  A restrained party must show by a preponderance of the evidence that:

  • A material change in circumstances has occurred, such that
  • The resumption of family violence is not likely, AND
  • Justice would be served by termination of the order.


The court must consider the “totality of the circumstances” including:

  • the present nature of the parties’ relationship, including proximity of shared residences and any shared parental
  • the restrained party’s history of compliance with the protective order and history of violence generally both before and after its issuance;
  • the restrained party’s efforts to undergo family violence therapy or similar counseling and rehabilitation;
  • the age and health of the restrained party;
  • any undue hardships suffered as a result of the order; and
  • the existence and nature of any objections the victim has to termination of the protective order.


This list is not exclusive, so a good advocate can argue any other relevant circumstance.  That is the good news in Mandt: in many of the PPO’s I have seen, the survivor would have sufficient evidence of a history of violence to argue against modification.  Unfortunately, many survivors do not have the resources to retain counsel to oppose a motion to modify a PPO.  How much will a legal advocate from a local domestic violence program be able to help a pro se survivor in such an action?  And what about the survivor who has relocated to another state as a part of her safety plan?  Since the motion to modify the PPO is a part of the underlying action, will she be forced to return to Georgia to defend her PPO (assuming proper service)?  Finally, the circumstances outlined by the court seem to focus more on considerations impacting the restrained party rather than the safety of the victim.  In a state that ranks 12th in the number of women killed by men, I am troubled that safety considerations did not feature more prominently.