A restraining order is a legal mechanism often used in cases involving domestic violence and when there are safety concerns. While a restraining order can take a substantial financial and emotional toll on both parties, it can also significantly affect the outcome of a child custody matter. How does a restraining order affect child custody? Well, for one, a restraining order can impact which parent is granted legal and physical custody rights.
It’s essential to understand that child custody comes in two parts: legal custody and physical custody. Legal custody refers to which parent has decision-making authority for the child. Physical custody means with whom the children reside. Either type of custody can be “joint,” and belong to both parents or “sole,” and belong only to one parent.
A restraining order, sometimes also called a “protective order,” is issued by the court when it is necessary to protect someone from abuse, threats, stalking, and harassment. While the individual who obtains the protective order is known as the “protected person,” the order can also include family and other household members.
Restraining orders can prohibit the restrained person from contacting, threatening, attacking, or communicating with the protected person. They may also include a stay-away order requiring the restrained person to stay 50-100 yards away from the protected person, their children, home, vehicle, or place of employment. In some cases, a restraining order may also order that the restrained individual move out of the home in which the protected person resides.
A domestic violence restraining order can have serious consequences. It can prevent the restrained person from going to certain places at which the protected person is present and require them to find new living arrangements. It can also impact their immigration status and right to own a firearm. Critically, a restraining order can cause the restrained individual to lose custody of their children.
The protected person may be able to obtain a temporary award of custody once an emergency protective order has been issued. However, unless visitation would put the child in harm’s way, a judge must grant reasonable visitation rights to a parent.
In cases involving a restraining order or domestic violence, a judge may order “supervised visitation.” In these cases, a third party such as a family member or social worker may be required to be present during visits. If there has been a finding of domestic violence, overnight visitation may be banned. In extreme cases, parental rights may be terminated permanently.
Under California Family Code § 3044, a parent cannot have sole — or even joint — child custody if they were found to have perpetrated domestic violence against another within the previous five years. This means that you may be denied access to your children and precluded from making decisions about their education, healthcare, and welfare. Critically, even if you are defending yourself against a restraining order, you may still be prohibited from making legal decisions on behalf of your child and living with them.
A judge will not only take abuse or domestic violence committed against the child in determining custody. The court will also consider violence committed against other children for whom the parent cares, the other parent, the current partner of the abuser, and anyone who lives with them.
A parent against whom a restraining order was issued can take certain steps to rebut the presumption that they should not have child custody. The court will consider certain factors to determine whether joint or sole custody should be granted, despite a finding of domestic violence. Specifically, the court will evaluate whether:
Notably, a judge must look to the above factors, even if a custody evaluator makes a recommendation in the case.
If you experienced domestic violence or a restraining order has been issued against you, it’s vital to have the guidance of an experienced family law attorney. A knowledgeable attorney can help ensure favorable results in your case — and the best possible outcome for you and your children. The Law Offices of Rick D. Banks is dedicated to providing compassionate counsel and reliable representation for child custody cases and a wide variety of family law matters.
The Law Offices of Rick D. Banks has been helping clients throughout Fresno and the surrounding area in their divorce and family law matters for more than 20 years. To schedule a no obligation consultation to discuss your legal issue, call (559)222-4891.