How Can a Restraining Order Impact Child Custody Decisions?

What is a Restraining Order?

A restraining or protective order is a court-issued mandate that can protect a person from being physically or sexually abused, threatened, stalked, or harassed. The order may extend to the protected person's family or household members, pets, or property. The order may include personal conduct orders such as not contacting, harassing, threatening, etc, the protected party. It may also include stay-away orders that indicate a specific distance to maintain between the two parties and a residence exclusion order that forces the restrained person to move from a shared residence. While a domestic violence restraining order is the type of order typically pertinent to child custodial decisions, it is not the only one that can have an impact.

What are the Types of Domestic Violence Restraining Orders?

There are three types of restraining orders associated with domestic violence. They are listed and defined as:

  • Automatic Temporary Restraining Orders: This is a common order instituted after a spouse initiates divorce proceedings. It is ordered to ensure the dissolution process is smooth and the risk of physical conflict and harm is mitigated.
  • Protect Order or Domestic Violence Restraining Order: This order can be requested during a divorce case to ensure protection from any party alleged to be suffering emotional or physical harm from the other party.
  • Emergency Protective Order: This order is instituted if abuse is imminent and court is not open. A victim may request the assistance of law enforcement in obtaining an EPO.

What Custody Laws Pertain to Domestic Violence?

When dealing with child custody cases and domestic violence, judges must follow specific rules to determine custody. First, a custody case will be treated as a domestic violence case if, in the last five years, either parent was convicted of domestic violence against the other parent or a court has decided that a parent has committed domestic violence against the other parent or the child(ren). If a judge decides a custody case is instead a domestic violence case, the judge cannot give joint or sole custody to the offending parent. Still, that parent may be able to get parenting time or visitation rights with the child. In this case, a judge may apply a rebuttable presumption, which is a legal assumption that can only be overruled by convincing evidence. This assumption is important because it places the burden on the abusive parent to demonstrate why he or she should be considered for custody or visitation. Special circumstances that allow a judge to grant joint or sole custody to the abusive parent are:

  • Proving to the court that granting sole or joint custody is in the best interest of the child
  • Successfully completing a 52-week batterer intervention program
  • Successfully completing substance abuse counseling, if ordered
  • Successfully completing a parenting class, if ordered
  • Complying with the terms of probation or parole, if applicable
  • Complying with the terms of protective or restraining orders and
  • Not committing any further domestic violence

What Factors are Considered?

There are two types of custody typically considered, and both can be granted as sole or joint custody.

Legal custody is the duty of the assigned parent to make important decisions for the child, such as health care, education, welfare, etc. Physical custody address where the child will live. Judges handling these types of custodial cases must consider several factors to ensure the best interest and safety of the child and the child's family members are maintained. To do this, judges must also consider any history of abuse by a parent against any of the following people:

  • Any child to whom the parent is related
  • Any child with whom the parent has cared for, no matter how temporary
  • The other parent
  • A parent, spouse, fiance, intimate partner, or roommate of the parent seeking custody

When these allegations are considered, a judge may also look at evidence that independently substantiates the accusations. This can be from law enforcement reports, child protective services records, medical facilities, or social welfare agencies.

What is Mitigation?

When two parents cannot agree on a parenting plan for their child, they will have to go to custody mediation. In mediation, a mediator or child custody recommended counselor will intervene to help two parties agree on a parenting plan for the child. A parenting plan determines who the child will live with and who makes important decisions for the child. Mediators are court employees. If a parent is worried about their own or their child's safety, the mediator should know. It is also within a parent's right to request to meet separately with a mediator if a restraining order or accusations of domestic violence are present.

Can Other Restraining Orders Affect Custodial Decisions?

A domestic violence restraining order is not the only order that can prevent custody and visitation rights.

A major part of a custodial hearing is proving the safety of the child. If a parent is found to have a history of violence or dangerous behavior, a judge would be within their means to deem that parent unfit for custody.

Do I Need An Attorney?

Deciding child custody is not easy. When adding potential violence or restraining orders to this already tough situation, you can quickly find yourself overwhelmed. Do not take this fight on alone. Ensure the safety and care of your child is in proper hands. Call Hurwitz Law Group today at 323-747-7484 or fill out our contact form for a free consultation.

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