Restraining Orders and Child Custody

Gaining joint or sole custody of your child is hard enough without a restraining order hanging around your neck. Restraining orders (sometimes referred to as protective orders) are useful tools for parents to keep themselves and their children safe, but if you feel you have been unfairly slapped with a temporary (or permanent) restraining order, your attempts to gain custody will get much more complicated. Restraining orders are, in the opinion of many people, overused during divorces and separations.

Process of Being Served a Restraining Order

If your spouse, ex-spouse, or other domestic partner wishes to serve a restraining order against you, he or she will make a request for Domestic Violence Restraining Order and obtain a Restraining Order from a judge. You will be served personally with a Temporary Restraining Order. The entire set of the package you will receive personally will also give you pertinent instructions, such as how to respond to the order and the court date in which you may contest the order. After a full hearing for Request for Domestic Restraining Orders, the judge will decide whether to dismiss the order or grant a permanent restraining order. Such a decision is made after both parties are given full opportunity to state their positions and present their evidence. It is important to prepare properly and present evidence in a legally acceptable manner. No matter how you feel about the restraining order, the most important thing is to not violate its terms. If you do, you will almost certainly face separate prosecution by District Attorney. You may face additional charges and may end up going to jail. 

Family Code 3044

The immediate impact a finding of abuse and issuance of a restraining order will have on custody varies depending on whether you were charged with violence against your child or your partner. The judge has fairly wide latitude to issue a special custody order along with a temporary restraining order. If the court eventually decides to grant a restraining order for up to 5 years, and you may need to familiarize yourself with “rebuttable presumption.”

Family Code 3044 lays out the process for gaining custody of your children if you are dealing with a domestic violence conviction or finding. In that specific code, it states that if you are found to have committed domestic violence by a judge within five years of trying to gain custody of your children then there is a “rebuttable presumption” that your children's best interest is to not be placed in your care. This means you will be swimming upstream in attempting to gain custody. However, there are seven points you may satisfy to help convince the judge you deserve custody of your children:

1. Prove that your child's best interest is to be placed in your custody;
2. Show that you do not have multiple domestic violence convictions;
3. Show that you have followed orders of your parole or probation;
4. Show that you have complied with the terms of the restraining order;
5. Complete a parenting class (if so ordered);
6. Complete a 52-week batterer intervention program (if so ordered);
7. Complete a substance-abuse counseling program (if so ordered).

If you are not granted custody but still have visitation rights, your restraining order might mandate special conditions regarding your visits. For example, the judge might rule that a professional supervisor must be present when you spend time with your child. All of it leads to a lot of frustration, further damaging the relationships and family dynamics. The best thing to do is control your temper. The second best thing to do is hire the best lawyer in town. 

Conclusion

If you have been served with a temporary restraining order, you have a constitutional right to a full hearing in three weeks. In those three weeks, you should confer with an experienced family law attorney to assess your case and determine the best path forward or risk having the “rebuttable presumption” used against you while in child custody hearings. Contact Madan for effective legal guidance today.