A restraining order is a legal tool that bans a restrained person from contacting or visiting the protected party. While a protective order is designed to ensure the safety of the victims, it can complicate family situations, including child custody, especially when emotions are running high. It is because courts do not take chances about children's best interests whenever there are allegations of abuse or domestic violence.

Custody of a Child Under Temporary Domestic Violence Restraining Order (DVRO)

The court can issue temporary child custody to a person who has:

  • Met jurisdictional requirements under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)
  • Proven a parent-child relationship

Establishing Child-Parent Relationship

The judge should determine that you, the petitioner, are the child's parent before granting you custody. If the restrained party has been proven to the minor's parent, the court might make a visitation order to the respondent until parentage is established.

When you have not established your child-parent relationship, but you have brought your parentage action, the court might issue a custody order.

You, the petitioner, can prove your child-parent relationship by providing one of the pieces of evidence below:

  • You gave birth to the child
  • The minor is a child born out of your marriage
  • The court has determined you to be the child's parent
  • A lawful adoption is pending or has happened
  • You have signed a voluntary paternity declaration more than sixty days before you made the protective order request, and you have not rescinded it.

If the restrained party has not proven their child-parent relationship, the judge could grant temporary sole physical and sole legal custody to you and no child visitation order to the other parent pending proving their child-parent relationship. The judge might decide this when deciding what is in your child's best interests and restrict your minor's exposure to domestic violence (DV), ensuring your family's safety.

Satisfying Federal Requirements Over Custody

Before the court makes a child custody order, you should prove any of the following:

  • Golden State is the minor's home state
  • The minor does not have a home, and the juvenile and more than one parent have a connection to the state that extends physical presence and significant proof exists in the state regarding the minor's personal relationships, protection, care, and training.
  • There exists an emergency which permits the courts' immediate action to keep your child safe.

California is your child's home state, provided they have resided there for more than six (6) months before you filed your retraining order request, or if the juvenile is below six months, the infant was delivered  in the state, has resided there, and either of the these conditions is fulfilled:

  • There is no court in another state that has made an order regarding your child
  • Another state court issued an order regarding the minor but has since decided that it no longer has jurisdiction.

In this context, there exists an emergency when the minor is in the state, and they have been abandoned, or a court order is essential to safeguard the minor because they, their parents, or siblings have been threatened with or subjected to abuse or mistreatment.

Rebutable Presumption

There are two (2) categories of custody: physical and legal. Legal child custody provides a parent with the responsibility and authority to make educational, welfare, and health decisions for their minor child. Physical child custody implies that the parent regularly lives with the minor. The court can award both forms of child custody to one parent or jointly to at least two parents. If there are findings that a person has engaged in domestic violence, they cannot have joint or sole legal or physical custody unless the judge rebuts this presumption under Family Code 3044.   

A rebuttable presumption applies when a judge has discovered that you have engaged in DV in the previous five (5) years against any of the individuals below:

  • Your child's other parent
  • The minor or their siblings
  • Your current partner or a person with whom you are currently cohabitating, dating, or engaged to
  • Your parent

Please note that a DV finding includes a domestic violence conviction or findings that there has been abuse in your DVRO case.   

To rebut this presumption, the judge should consider the factors below and ensure each fact supports your child's best interests:

  • Whether you have completed your batterer's treatment program
  • Whether you have completed the court-ordered parenting program
  • Whether you have completed your court-ordered drug or alcohol counseling
  • If you are on parole or probation, whether you adhered to its conditions
  • Whether you are abiding by your protective order conditions
  • Whether you have committed another domestic violence act
  • Whether granting the person who committed domestic violence acts joint or sole child custody is in the minor's best interests.  

Application of the presumption is compulsory, and the court cannot make it effective only if it is appropriate. At a child custody hearing at which the judge knows that a parent has made domestic violence allegations, the court should determine whether this presumption applies.

If the judge cannot determine during the initial hearing, they can reschedule the court hearing. However, if a parent has raised domestic violence or substance abuse allegations, the default order is to give the nonoffending party sole physical and legal child custody and supervised visitation to the other parent until the court determines the matter.

Special Finding Essential for Specific Convictions

If the judge desires to grant an individual described below child custody, they should find that there are no substantial threats to the minor and indicate their reasons. The judge should make the finding if the individual:

  • Is a registered sex offender following a child abuse felony conviction
  • Resides with an individual who is a registered sex offender following a child abuse felony conviction
  • Was sentenced for child abuse
  • Was found guilty of molesting a minor
  • Was sentenced for child endangerment

An individual convicted of rape whose baby was conceived due to the violation should not have unsupervised visits or joint or sole child custody. 

A Restraining Order Might Trigger Supervised Visitation

The court should specify the time, day, and manner in which the transfer of the minor for visitation or custody will be made. The court order should be tailored to restrict your juvenile from potential domestic violence exposure and ensure the safety of every family member.

Any child custody or visitation order granted following a criminal protective order should acknowledge and refer to the enforcement of other existing restraining order(s).

When deciding whether visitation should be supervised or not, the court considers the case's circumstances. 

Supervised visitation occurs when a parent spends time with their minor child, with a provider present to listen and observe.

A provider is a neutral person the court orders to listen to and observe every visit with your baby. The provider's role is to ensure the minors' safety.

The provider should do the below:

  • Listen to your conversations
  • Always be present during the supervised visit
  • Focus on your child's conduct
  • Report every child abuse instance they suspect
  • Interrupt or end your visit once they have a concern

There are two types of providers, namely:

  • Professional —A professional provider has special training and has passed a background check. They charge a fee for their services. They are mandated reporters and should report every child abuse instance they suspect to the child protection services.
  • Nonprofessional —The provider can be a relative or friend without any special training. If you believe it would be dangerous to leave your child with their other parent, this is not the best option. 

Violating your supervised visitation order can result in legal repercussions. Common violations include the following:

  • Attending your visit while drunk
  • Talking negatively about your child's other parent
  • Failing to comply with the supervisor's instructions
  • Trying to remove the minor from your visitation location

If you are subject to supervised visitation, you can file a petition to terminate or modify your order. You have the burden of proof to prove to the court that supervision is not essential.

Addressing Child Custody Modifications

You can modify your child custody agreement. Nonetheless, simply because you have requested changes, it does not mean the judge will adopt them. It should be considered necessary or in your child’s best interests.

To modify your child custody arrangements, there should be a significant change in circumstances. It can include circumstances that affect a minor's welfare, such as a parent relocating, an altered work schedule, and health concerns. Please note that general parental disagreements and minor inconveniences are not a significant change in circumstances.

Common reasons why child custody modifications are made are as follows:

  • Changes in a minor's life that one parent cannot handle, or challenges in a parent's life
  • Your child requests the modification
  • The other parent is irresponsible in a manner that can negatively affect your minor child, or is not complying with the agreement.

California courts consider minors' preferences, provided they are over 14, but the children do not have the final say. The court will also consider factors such as the minor's age, the reasons for the preference, and the minor's maturity. Above all, the court will prioritize the minors' best interests.

How to Request the Modification

You should submit your request by filing Form FL-300.

Additionally, you can also file Form FL-311,  although it is optional. You can use this form as your supporting document. You can provide precise information on the minor's visitation with you and their other parents. You can also use it to argue that their other parent is not adhering to their responsibilities per your current custody agreement.

Since filing the relevant paperwork can be overwhelming and requires a lot of specific details, it is wise to hire a seasoned attorney. Your lawyer will complete the form, offer advice, and help you understand your options. Providing incorrect or incomplete details can lead to delays. 

After filling out the relevant forms, you should make two more copies of every form. Next, submit the form to the court clerk alongside your filing fee. The court clerk will stamp the form and give you a court date. They will keep the original copies and return the rest to you.

Finally, you should serve the other parent with the papers.

The judge will require you and your partner to engage in mediation before proceeding to trial. Mediation allows you to reach an agreement with the assistance of court-appointed supervision and your attorneys. The benefits of mediation include its cost-effectiveness and its ability to prevent further court engagement.

If you agree, the court will adopt the agreement, provided it is in your child's best interests.

If you fail to agree at the mediation phase, the case will proceed before a judge. The mediator serving as your child custody recommending counselor can submit recommendations to the court. 

During the hearing, the court will analyze your submitted forms and consider additional proof. If it finds in your favor, the child custody modification becomes effective.

When determining whether to modify child custody arrangements, the court considers the following:

  • Your child's best interests
  • Proof of parental behavior and fitness
  • Safety concerns of the minor and other relatives

While the judge's decision is final, either parent can make future requests if significant changes occur with your child or their other parent.

Best Interests of a Child

Here are the factors the court considers when determining whether the child's interest exists:

  • The child’s health, welfare, and safety
  • Is there any history of abuse perpetrated by one parent or the individual seeking custody
  • Is the parent or any other party seeking custody of a relative of theirs by blood or has been their caretaker, even if temporarily?
  • Is the person applying for custody a parent, cohabitant, or in an engagement relationship with the party seeking custody?
  • When considering abuse accusations, the court might require independent corroborating evidence, including written police reports, child protection services, or social welfare authorities, medical facilities, courts, or other public agencies or non-profit organizations offering services to domestic violence or assault victims.
  • Both parents' nature and the frequency of contact with each other
  • The continual or habitual abuse of controlled substances, alcohol or prescription pills by any parent. Before considering accusations of this nature, the court could require independent corroborating facts, including written police reports, probation departments, courts, medical facilities, social welfare programs, rehabilitation services, or other public authorities or non-profit groups offering alcohol and controlled substance abuse services.

When the court is notified of an allegation of child abuse or drug abuse by a parent and the court decides to order unsupervised visitation or joint or sole child custody to that parent, the judge should state the legal reasons that the ruling is in the child’s interests and safeguards the juvenile and parties involved. Under the circumstances, the judge must ensure that orders regarding a child’s visitation or custody are specific regarding the place, time, and the child’s physical transfer.

Note that the court must not consider the gender, sex, sexual orientation, gender identity or expression of any parent or guardian seeking the child’s best interest.

How to Coparent with a No Contact Order

While co-parenting with a restraining order might seem impossible, it could work through parallel parenting. Although the approach is less collaborative, it is suitable for high-conflict situations.

Some individuals utilize parallel parenting, which limits communication even if neither parent has a protective order against the other. The arrangement helps the minor build a relationship with both parents.

If you have a no-contact restraining order, adhere to its regulations. The order may specify how you should co-parent. However, if it does not, you should file for sole custody of the child.

Note that if you have a DVRO against you, you should obey the rules, not the other party. If the other parent intends to ignore a portion of the order, you, the restrained party, must avoid taking the risk.

To co-parent without communicating with each other, you should:

  • Attend your minor’s separate events or attend at varying times
  • Message the other parent through a co-parenting app
  • Make contact via a third party, including a parenting coordinator or an attorney, but never through your minor child.
  • Request that the court not disclose your contact details.

To pick up the child without contacting their other parent, you may:

  • Have a person you trust transport the minor
  • Hire a child-friendly ride share service
  • Have a person you trust supervise your exchanges, as you may arrive at different times.
  • If the child is of age, allow them to transport themself from one home to the other.
  • Schedule your exchanges in between school hours, so that one parent can drop the baby off and the other can pick them up.

Find Experienced Legal Assistance Near Me

A restraining order can have devastating effects, including loss of child custody, parenting time, and parental responsibilities. It is because the court acts in the minor's best interests. This is true regardless of whether the minor was involved or present at the incident that led to the protective order.

Whether you are seeking protection or want to fight a restraining order against you, consider hiring Goldman Flores Restraining Order Law Firm. We can review your case facts, ensure you understand the contents of the protective order, answer your questions, and advise you on available legal options. Please contact our Los Angeles office at 213-341-4087 to schedule your initial consultation.