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Child Custody— California Courts Consideration in Making Custody Awards —Part 7: Existing Restraining Orders

This is the seventh and final entry in my seven-part blog series entitled “California Court’s Consideration in Making Custody Awards.”  As stated in Parts 1, 2, 3, 4, 5, and 6,  I am writing this series due to the number of emails and calls I receive in my California Family Law Practice on a weekly basis from concerned parents regarding their California custody cases. It’s my hope to help shed a little light on this issue so that my reader is better able to navigate his/her way in the California legal system regarding their custody case.  Part 7 focuses on issues relating to existing restraining orders—a look at this issue from the court’s perspective. This issue, and many others, are factors a California judge will look at when making a determining on custody.

EXISTING RESTRAINING ORDERS

Existing restraining orders are not treated like the crimes outlined in Part 6 of my blog “California Court’s Consideration in Making Custody AwardsParent’s Crimes.” With regard to domestic violence, the court is encouraged to make reasonable efforts to determine whether any emergency protective order (EPO), regular protective order (RO) or other restraining order is in effect that concerns the parents or the child.  If so, the court is “encouraged” (not prohibited) not to make a custody order that is inconsistent with the restraining order unless the court finds that (1) the custody order cannot be made consistent with the restraining order and (2) the custody order is in the child’s best interests. (Family code section 3031(a)).

When custody or visitation is granted to a parent in a case in which domestic violence is alleged by a parent and a restraining order has been issued against the restrained party, the custody or visitation order must specify the time, day, place and manner of transfer of a child in order to limit a child’s exposure to potential domestic conflict or violence and to ensure the safety of all family members. When the court finds that a party is staying in a shelter or other confidential location, the order must be written as to prevent disclosure of the protected party’s location. (Family Code section 3031(b)).  Also, the court must consider whether the child’s best interest, based on the circumstances of the case, requires that any custody or visitation arrangement be limited to situations in which a third party, specified by the court, is present or that custody or visitation arrangement be limited to situations in which a third party specified by the court is present or that custody or visitation be suspended or denied. (Family Code section 3031(c))

A Discussion

In many instances in a divorce or custody case, one parent will seek concurrent restraining orders against the other parent.  The court is well aware of the fact that it’s not  difficult for  a parent to request and procure restraining orders against the other parent.  It’s a sad reality to admit, to which the court is is well aware, that there are a number of judges who “rubber stamp” restraining order requests.  With this knowledge, this means that a family law judge will carefully look to the facts of the case to determine the actual likelihood that a restrained parent is a danger to the child.  Let me illustrate a common scenario: mother and father were dating for a period of months. The break-up was ugly.  Mother filed restraining orders against the dad because he wouldn’t stop calling her and emailing her, and in one instance, was pounding on her door at 3 a.m. when he was drunk.  Being fearful, Mother sought and received 3-year restraining orders against the ex-boyfriend/dad.  Now, compare this against the boyfriend who put the mother in the hospital as a result of physically abusing her on one or more occasions. As you can see, the facts can range so much from situation to situation. For this reason, there is no black-and-white rule about restrained parents and custody/visitation issues.  The court will be required to make orders that are “consistent” with the restraining orders. In certain situation, this means, for example, so long as restrained parent has no contact with the protected parent, then the court can set custody and visitation orders as to allow the child to have ongoing and consistent visitation with both parents—not just one parent.

Dealing with both custody/visitation issues and restraining order issues are very complicated issues. It is recommended that a person dealing with such issues seek legal assistance, as the consequences of not being properly represented or educated can have dire consequences—for both the parent and the child.

A Final Word

 In my series California Court’s Consideration in Making Custody Awards, I wrote a total of seven blog posts about the main issues the court will address when making an award of custody and visitation. By no means, are my seven blog posts a complete compilation of all factors a court will consider in awarding custody and visitation .  I welcome my reader to return back to California Divorce and Family to read additional blog posts about this very complicated area of family law. In fact, issues relating to custody and visitation are, bar none, the most complicated and expensive areas of family law.

Ms. Garrett is a qualified and experienced California family-law attorney. Click here  if you wish to discuss your California custody matter with Ms. Garrett.

Child Custody–California Courts Consideration in Making Custody Awards–All Blogs

Part 1: “Best Interest of the Child” Standard— Child’s Health, Safety & Welfare

Part 2: “Best Interest of the Child” Standard—Part 2: Abuse & Domestic Violence 

Part 3: “Part 3: Contact With Parents and Siblings, and Use of Controlled Substances or Alcohol”

Part 4:”Parents Gender”

Part 5: “A Child’s Preference

Part 6: Crimes of Parents: Parent is a Registered Sex Offender (or Person Convicted of Child Abuse) or Rapist”

Part 7: “Existing Restraining Orders” 

Legal Disclaimer: Everything on this blog pertains to California law only and is written by an attorney licensed to practice only in the State of California. Further, information provided on this blog post or this website is to be used for general informational purposes only and is not to be construed as legal advice in any way shape or form. The underlying purpose of this blog post is to provide the reader with general information to use in talking with an attorney and/or as a general guide when conducting  their own research on their  particular legal matter.  Finally, keep in mind that if you are not a California resident and/or your matter is not based in California, the laws may differ in your state. In such cases, it is recommended that you seek legal assistance and/or review information that relates to the laws of your state.

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