How Restraining Orders Affect Custody & Co-Parenting
When a married relationship has deteriorated to the point where one spouse has sought a restraining order against the other, the spouse seeking the order may worry that they are leaving their children vulnerable to potential custody with the abuser. Fortunately, California law recognizes that in situations of domestic violence, children can be at risk of harm even if they are not the direct target of abuse. The effects of a restraining order on child custody reflect this belief, changing the presumption that some form of joint custody would be best.
To understand how a restraining order will affect child custody in a divorce, consulting an experienced family attorney can help illuminate the law’s strict requirements and provide insight on the best way to preserve parental rights.
What Is a Restraining Order?
In California, a restraining order is a court order meant to safeguard someone (the “protected person”) from being assaulted, abused, or harassed. The “restrained person” (the person whose conduct is restricted by the terms of the restraining order) may be ordered to stop specific conduct such as contacting the protected person, or even being near where they live or work.
In situations of domestic violence, there are three types of protective orders to be familiar with. A law enforcement officer can request an Emergency Protective Order (EPO) per Family Code § 6250 to provide protection against an immediate threat of domestic violence, child abuse, or child abduction. A temporary restraining order (TRO) can be granted by a judge to provide short-term protection (between 20 to 25 days) before a court hearing can be held to determine if a permanent restraining order (which can last up to 5 years and can be renewed) is appropriate. California’s definition of domestic violence is not confined to physical abuse, so a restraining order may be issued in response to a wide range of emotionally or psychologically abusive behavior.
Impact of a Restraining Order on Child Custody
California law prioritizes the child’s best interest in determining custody arrangements. Factors such as the child’s age, their relationship with each parent, and their ties to their community will help guide what share of custody each parent is awarded. In general, it is presumed that the child’s emotional well-being will be promoted by having a meaningful relationship with both parents. Thus, the court starts with the idea that some form of joint custody will be best, and if one parent objects, it is up to them to provide evidence and a strong argument why another arrangement would be better.
However, if there is domestic violence involved, the picture changes dramatically. If, in the last 5 years, a parent has a criminal conviction for domestic violence or if a court has decided they committed domestic violence against the other parent or the children (for example, by granting a restraining order), then a different standard applies. In such cases, it is presumed that it is against the child’s best interest for someone who has committed domestic violence to have sole or joint physical or legal custody. The burden is then on that parent to make the case that it would be in the child’s best interest for them to be awarded some degree of custody, with the court being required to consider a range of factors and “any relevant, admissible evidence submitted by the parties.” The court can’t, in these cases, make its decision based just on whether a child custody evaluator or Family Court Services staff believes the restrained party should share custody.
This does not mean that the parent with the restraining order against them has no chance of seeing their children. They may be awarded some amount of visitation even if the other parent has been granted sole legal and physical custody.
Strategies and Challenges of Co-Parenting with a Restraining Order
Having a restraining order in place adds a layer of complexity to co-parenting, which can already be a difficult relationship to navigate. Most restraining orders specify a certain amount of physical space that must be maintained between parties, and they may forbid all contact. Plans for how to communicate information about shared children, to get children to and from visits with the noncustodial parent, or to allow each parent to participate in significant events in the children’s lives must take the terms of the restraining order into account.
Possible solutions for ordinary obstacles that can arise include:
- Having a friend, family members, or a visitation officer transport the child to and from their time with each parent.
- Communicating through the parties’ respective attorneys, another third party, or an agreed-upon co-parenting app (this may require a request to modify the restraining order to allow the discussion of co-parenting issues).
- Coordinating schedules to designate which parent will attend events such as parent-teacher conferences or family gatherings.
An experienced family law attorney can help suggest additional approaches, depending on the terms of the restraining order and the details of the parents’ situation. Remember: It is the responsibility of the restrained party to adhere to the order’s terms. Failure to do so can have a negative impact on their efforts to gain a share of custody.
Modifying Restraining Orders and Custody Orders
Either party can request the court to modify or end a restraining order, but it is up to the court to determine if the order is still necessary or if new terms are warranted. Both sides will have the opportunity to present evidence supporting their position—for example, new incidents of harassment or violations of the order’s terms, or on the other hand, proof that the restrained party has completed mandated batterer’s intervention courses or parenting classes. The court will carefully consider, no matter who has initiated the request, whether the protected party’s safety is still at risk before a restraining order is canceled.
Changes to an existing restraining order will not automatically change a child custody order, even if the restraining order is ended. A request will also need to be filed with the court to change custody arrangements. It is strongly recommended to have expert legal representation to help navigate the process and build the strongest possible case for a modification.
Seeking Legal Support
Issues of child custody become much more complicated when a restraining order is involved, making it essential to seek experienced legal counsel as soon as possible. A knowledgeable family law attorney can help ensure a protected person knows their rights and provides advice on when it might be necessary to fight for further protection for themselves and their children.
For a restrained person, regaining some measure of child custody can hinge on how well they follow the terms of existing restraining and custody orders. In such cases, their attorney’s guidance can be invaluable in assuring they understand what’s required and that they can make a compelling case for modifying custody arrangements when appropriate.
Your Bay Area Family Law Firm
If you’re worried that joint custody means that the nightmare of domestic violence won’t end with your divorce, the attorneys of Hart Ginney are the advocates you need. We’re here to get you and your children the legal protection you’re entitled to. To schedule a consultation, call us at 510-628-0250 or fill out the form below.
