When the courts determine custody, their priority is the safety and best interests of the child in question. Consequently, allegations or convictions for domestic violence or abuse can significantly impact a custody order. In extreme cases, it may even result in one parent losing custody of their children or being limited to supervised visitation only. If you have been accused of domestic violence or have a protective order imposed against you, it is important that you speak with an attorney right away.
Keep reading for more information on restraining orders and how they can affect a custody order.
Types of Restraining Orders
California issues three different types of restraining orders: emergency protective orders (EPO), temporary restraining orders (TRO), and permanent restraining orders. EPOs are only used in emergencies and when law enforcement contacts a judge to request one. TROs are short-term restraining orders that are typically used while waiting for a hearing regarding a permanent restraining order. Generally, TROs last for 15 days or until the hearing, whichever is later. Permanent restraining orders are issued after a hearing with a judge and can last for up to five years. They can also be renewed. During a hearing for a permanent restraining order, the alleged abuser has the opportunity to respond to the allegations.
Child Custody & Domestic Violence
California has specific laws that deal with child custody and visitation in cases where there is domestic violence. Before applying these laws, a judge will first determine if there is domestic violence. According to the California Courts, a judge will classify a case as a domestic violence case “if, in the last five years, a parent as convicted of domestic violence against the other parent; or any court has decided that one parent committed domestic violence against the other parent or the children.”
It’s important to note that a judge may decide that someone has committed domestic violence based on a restraining order issued for one or more years. If a judge decides that your case is a domestic violence case, they cannot give custody to the parent who committed the domestic violence. However, that parent may be awarded parenting time or visitation with their children. Keep reading to learn more.
How to Get Custody Back After Domestic Violence or Restraining Order
While the courts cannot give custody to someone who they have determined has committed domestic violence, there are circumstances under which that parent can get custody back. According to Family Code 3044, there are seven factors that the judge will consider when grating custody to someone with a domestic violence conviction or finding.
According to the Judicial Council of California, the seven factors are:
- Whether granting custody is in the child’s best interest
- Whether the parent has committed any other domestic violence acts
- If there is a restraining order in place, has the parent complied with all conditions of said order?
- If the parent in question was on probation or parole, have they complied with all conditions?
- Has the parent completed a one-year batterer intervention program?
- Has the parent completed any court-ordered or court-required alcohol or drug counseling programs?
- If required by the courts, has the parent completed a parenting class?
To learn more about Family Code 3044 and regaining custody, review the court’s handout here.
What to Do If You Have a Restraining Order for Domestic Violence Issued Against You
Domestic violence cases are extremely complicated and are often emotionally charged. It is not uncommon for people to have competing accounts of what happened, and even if you think it’s clear that no domestic violence occurred, this does not mean you cannot be accused. Because a restraining order for domestic violence can lead to a loss of custody, it is very important that you contact a lawyer as soon as possible. The sooner you secure legal representation, the sooner you can begin building a strong defense.
Furthermore, if you suspect that someone is going to accuse you of domestic violence, you must speak with an attorney as soon as possible. Unfortunately, false accusations do happen, especially in high conflict custody and divorce cases. When this happens, you need a strong attorney by your side, helping you fight for your rights.
To discuss your case with an experienced attorney, reach out to our law firm. We have helped many clients who are dealing with complicated custody issues.