Cases of child custody and restraining orders most often go hand in hand in California. Consider a heated divorce case marked with domestic violence instances and involving children in addition. In this kind of case, the presiding court may find itself having to issue a restraining order against the abusing ex-spouse and decide child custody.
When you seek child custody and a restraining court order simultaneously, understanding the legal considerations involved is crucial. That is because they can affect the well-being and safety of every involved party. The best place to start is to seek legal advice. This blog explains relevant California considerations and laws for people in this intricate situation.
Understanding Restraining Orders
The interplay between a restraining (protective) order and custody can be extensive. To begin with, let us review what a protective order is and the various types you can obtain under California law:
A restraining order is a court-issued order to bar a person from committing a given action, particularly contacting or approaching a specified party. Various types of restraining orders exist under California law. They include:
● Domestic violence restraining orders (DVROs)
● Workplace violence restraining orders
● Civil harassment restraining orders
● Elder or dependent adult abuse restraining orders
This blog refers to domestic violence restraining orders. A judge grants a DVRO when they determine that someone has perpetrated or threatened to perpetrate abuse against a person with whom they have or had an intimate relationship, including:
● An ex- or current domestic partner or spouse
● An ex or current roommate
● Someone they used to date or are currently dating
● Their child's mother or father
● A close relative, like a parent, grandparent, or sibling
Put otherwise; a judge issues a domestic violence restraining order when they find that somebody poses a danger to someone else to whom they are close. Some of the acts considered domestic abuse under California law are:
● Making one’s partner, child, or spouse reasonable fear that they or someone else faces imminent danger of physical injury
● Any form of sexual assault of a family or household member
● Deliberately or recklessly inflicting bodily harm to a household member
● Committing any activity that would justify the court issuing a retraining order, including threatening texts or phone calls, harassment, physical assault, stalking, disturbing the victim’s peace, and destroying property.
Disturbing the victim’s peace may include any act that would hurt their emotional or mental state. This includes:
● Isolating the victim from other support sources,
● Controlling their finances,
● Monitoring their movements and communications,
● Controlling pregnancy outcomes via coercion
● Interfering with their use of contraceptives
● Other ways that interfere with personal freedom
California’s Policy on Domestic Abuse and Child Custody
It is California’s public policy that every decision about custody of a minor must center first on a child’s safety, welfare, and health. Not only is a child entitled to be free from abuse themselves, but the law clarifies that staying in a home with any form of domestic abuse is harmful to a minor’s welfare. Apart from these overall principles, California statutes include several specific provisions to address how the court must handle cases that involve domestic abuse, child neglect or abuse, and allegations of abuse.
Obtaining a Domestic Violence Restraining Order
You must request a domestic abuse restraining order against somebody for the judge to lawfully issue it. To request a DVRO, you must follow particular steps. These include:
Completing application forms: Begin by completing and filing DVRO request forms. These include Form DV-100, Request for Domestic Violence Restraining Order, and Form CLETS-001, The Confidential Information for Law Enforcement. These forms require you to provide information on the supposed abuse and your requirement for protection.
A date for a court hearing: After filing the documents, the court issues a hearing date. The hearing is essential in the DVRO issuing process. That is because it enables you to present your case and arguments and evidence to support the requirement for a DVRO. Prepare for this court date well. Review the court papers and prepare what you will say before the judge.
Serving the papers: You must serve copies of the paperwork to the alleged abuser. Ensure you serve them properly; otherwise, they will dispute it. By serving the paperwork, you would have notified the alleged abuser of the court proceedings and your application ffor a DVRO.
Attending the court hearing: The last step is to attend the scheduled court hearing. At this hearing, the court will allow you and the supposed abuser to present your cases. You must present compelling arguments and evidence to support the court issuing a protective order. The judge will consider the submitted evidence before deciding.
DVROs offer various levels of protection: emergency protection, temporary protection, and permanent protection.
● Emergency protective orders (EPOs). Law enforcement officers who first respond to a domestic violence scene can issue an EPO. This is true if they determine imminent abuse and courts are not open.
● Temporary restraining orders (TROs). You can secure a temporary DVRO in case of domestic violence. This order helps mitigate the risk of physical conflict. In the case of a divorce, the order ensures the divorce process goes smoothly with minimal disputes.
● Permanent restraining orders (PROs). You can request this order in a domestic abuse case to ensure protection for the abusing spouse. If the judge grants a PRO, it can restrict the conduct of the spouse who perpetrated the violent acts. That is especially so when there is a reasonable ground to fear violence against you or the children.
Any level of protection by a DVRO can impact a custody case, be it against the other parent or any of the parties mentioned above. Any record of violence calls for concern in a judge's eyes.
Child Custody When a Restraining Order Is In Place
When experiencing domestic abuse, a person can demand custody rights and a protective order at the same time. In this case, the court will also have to issue custody orders. This combined approach enables the protection of the victim and children involved.
You want to know the legal complexities involved if you have child custody and restraining order cases. Restraining orders offer security and protection to children and parents subject to threats of harm or abuse. Requesting a restraining court order enables you to lawfully bar the supposed abuser from coming near the child. This enables you to protect the minor's emotional well-being and safety. This comprehension empowers people to take the necessary measures to safeguard themselves and their loved ones.
You must complete the Request for Child Custody and Visitation Orders form to file for custody of your child and visitation orders when requesting DVRO. By filling out this form, you would have formally requested the judge establish custody arrangements and issue the protective order.
There are two types of custody involved: legal and physical custody. Legal custody is when the court awards a party the responsibility for making major life decisions for the child. This includes choices concerning religion, medical treatment, and education. Physical custody is when a person must provide a secure and safe home environment for the child. Both kinds of custody can be full, where one party is the primary caretaker or decision-maker. It can also be joint. This is where the two parents share the duty of providing a home or the legal rights to decision-making.
That said, there are different factors to consider when seeking child custody and a restraining order. These include the following:
● Sole physical and legal custody. You can request sole physical and legal custody rights of the minor. That means you will have the full authority to make decisions for the child and provide a home for them. The restrained parent will have no involvement.
● Setting a visitation plan. You can establish a visitation plan outlining how and when the other parent can see the child. You can tailor the plan to satisfy the family’s circumstances and needs.
● Restriction on visitation orders. If there are concerns about the minor’s safety, you can request the restrained parent not to visit them. Or, if they must visit, you can arrange for a third party to supervise the visits to warrant the minor’s safety.
● Restricted access to records and other information. You can ask the court not to grant the retrained parent access to information or records about the minor.
Considerations for the Court
Under California’s custody laws, a judge must prioritize the child’s best interest when determining visitation and custody arrangements. The judge considers several relevant factors to establish the minor’s best interests. Among these is a parent’s record of violence against one or more of these parties
● The minor’s other parent
● Any minor related to the parent (such as their stepchild) or under the parent’s care, whether temporarily or otherwise
● The parent’s parent or
● Somebody who resides with, dates, or has dated the parent
The judge should also look at:
● The child’s welfare, safety, and health
● The continual or habitual unlawful use of drugs or alcohol by either parent
● The amount and nature of contact the minor has had with either parent
However, when doing that, they must consider whether either parent has moved out of the family home due to the other parent’s threatened or actual domestic abuse. When a restraining order is in effect that impacts the child or parents, the judge should refrain from issuing a visitation or custody order conflicting with the restraining order.
You want to provide solid documentation and evidence to strengthen arguments and support claims favoring a child custody arrangement. This could include witness statements, medical records, police reports, and other relevant documentation of the protective order itself. The court will depend on these documents to make informed decisions while prioritizing the minor’s safety.
Courts have the legal responsibility to safeguard minors from harm and exposure to possible dangerous situations. Thus, child custody decisions should align to guarantee the minor’s emotional stability and security.
How a Restraining Order Can Affect Child Custody Decisions
Domestic abuse differs from child abuse. That is because, in domestic abuse, the victim should be older than eighteen years old. Even so, research has revealed that domestic abuse can impact children. That is especially so when they witness the violence. In certain situations, the emotional effect of minors who have experienced domestic abuse in their homes is the same as that of minors who face neglect and abuse.
Because of the emotional and mental impacts that domestic abuse has on minors, judges will generally not grant custody to the parent served with the DVRO if they establish that the violence will likely occur again.
Also, a parent served with a DVRO is often only awarded limited child visitation rights. These are strict rules or schedules about when they could visit their child or children. Generally, a restrained person might not see their children as often as they would like to. Sometimes, they can only visit the minor under a third party’s supervision. Or the visitation orders will prohibit them from having the minor spend the night at their home.
With supervised visits, a neutral party will be present. They will be there to listen, watch, and ensure the child is comfortable and safe. Generally, the court will designate a professional childcare provider to supervise those visits. California statute permits parents to recommend someone, such as a friend or family member, to supervise the visits. However, the court is not mandated to select that individual. A supervisor who has not undergone training may not be suitable when it may be dangerous for a minor to be with the restrained party.
The judge might also deny the restrained parent visitation rights altogether if they believe the following to be true:
● Visitation would adversely impact the minor’s emotional development
● Visitation would endanger the minor’s physical health
● Visitation would otherwise conflict with the child’s best interests
● It is impossible to visit the child and still protect the other parent from more abuse
The judge should consider some factors when determining whether to deny or award visitation rights. These include:
● How long it has been since the court issued the order
● The type of conduct that resulted in the restraining order
● Whether the restrained parent has committed any more violence since then
There are cases where one parent stays at a confidential shelter to avoid domestic abuse. In these cases, a judge should consider the facts before determining whether it would be in the minor’s best interest for the restrained parent to have physical visitation. These facts include whether the restrained parent has access to guns and has broken any restraining order terms.
A domestic violence restraining order may include temporary child custody arrangements. This is especially true if the judge has not yet determined a long-term schedule. Temporary custody orders often award the protected parent legal and physical custody. A permanent DVRO remains valid irrespective of any child custody orders. That means the restrained parent cannot violate the terms of the order, even if they have visitation rights.
A Restained Parent May Receive Full or Joint Custody
The court will likely deny custody rights to a parent facing a DVRO and child custody case. These parents will also have limited visitation rights. However, that does not imply the parent should not mount a solid case. Sometimes, a judge might grant joint or full custody to the parent with a record of a protective order. Factors the judge will consider are:
● The date the court issued the restraining order,
● The parent’s conduct since the order if they completed their court-required programs
● The living conditions of the parent requesting child custody
It bears repeating that in every custody case, the court’s main priority is the child's interests. The judge’s legal duty is to do their due diligence when evaluating the parent’s fit to have custodial rights. That means although one parent may have had a restraining order against them, they might still be fit to have child custody rights. Judges consider the period that has elapsed since the restraining order and comprehend that with appropriate treatment, some parties can drastically improve their conduct and be fit to become caregivers.
Suppose a parent served with a DVRO in the last five years has requested joint or full child custody. In that case, California statute presumes it is not in the minor’s best interest for them to receive it. However, this presumption is rebuttable. That means the parent might try countering it with evidence. They can prove that having sole or joint custody would serve the child’s best interests. The judge would also consider these factors, Section 3044 of the Family Code:
● Has the parent completed their 12-month-long batterer’s intervention program?
● Has the parent followed every condition of any protective order against them?
● Does the parent have a history of other domestic abuse cases?
● What custody arrangement or plan is in the child’s or children’s best interests?
● If the court had required any drug or alcohol programs, has the parent finished them?
● Has the parent complied with all their probation or parole terms?
● If the court ordered any parenting classes, has the parent finished them?
The court judge will refer to the abovementioned factors to establish visitation and custodial rights. They can award sole or joint custody only when all the factors, on balance, support California’s public policy of safeguarding children’s safety, health, and general welfare. If you have a record of a restraining order and are subject to a custody case, you want to seek legal counsel.
Termination of Parental Rights
If there is the presence of extreme violence, the state might initiate its own case to terminate the restrained parent’s rights to the child. Should the court find that it should terminate their parental rights, the parent will lose any chance of any legal custody, physical custody, or visitation rights. In this case, the parent cannot regain their parental rights in the future.
Losing parental rights would not happen as an outcome of a child custody case. Rather, it may result from a distinct, lengthy process under the juvenile court called dependency proceedings. Nevertheless, when a parent brings up domestic violence allegations and a DVRO request in a child custody matter, the judge might request that a child welfare organization investigate. The agency might bring a dependency request before the juvenile court based on the outcome.
At the dependency hearing, the court allows the abusive parent to prove they are addressing the problem. For example, they can show they are:
● Undergoing counseling,
● Taking classes, or
● Engaging in other programs called reunification services.
Generally, a parent will not lose their rights unless they fail at the reunification programs or refuse to cooperate.
Ending parental rights is a severe measure that strips the abusive parents of any of their rights over the minor for good. This includes the legal right to visit them or make any major decision over their life. That is why it is the last course of action considered. It is often an option for cases that involve callous treatment, harm to the child, or neglect.
How Child Exchange Happens If a Restraining Order Exists
A DVRO often includes no-contact orders and stay-away directives. It can also include agency-supervised custodial exchanges and other proactive actions. All these are to ensure the protected parent's and children's safety. These protections are crucial, particularly in cases involving high conflicts. Working with a lawyer ensures the protections are enforced in their entirety. An attorney can advocate for the necessary adjustments to visitation or custody.
Find an Experienced Los Angeles Restraining Order Attorney Near Me
Establishing a custody arrangement is among the most stressful things parents could face. The case becomes even more complicated when you are fighting for custody and wish to secure a protective order or the order is already in place. In this case, you require expert legal counsel. A skilled lawyer can give specific advice based on your case, represent you in court, and fight for your minor’s best interests.
At Goldman Flores Restraining Order Law Firm, we handle matters related to child custody and restraining orders. Our lawyers have in-depth experience providing legal support to those facing danger of harm. Our main aim when handling cases is to ensure the victim and their child or children receive an outcome in their best interest. Call us at 213-341-4087 for a free, confidential consultation if you have a restraining order and child custody case anywhere in California.
