Restraining orders can take a toll on parties, both financially and emotionally. Unfortunately, the consequences of having a domestic violence restraining order granted goes beyond the emotional and financial. They can also have severe consequences on who gets granted rights over the minor children involved in the case.
In California, rights over a minor child includes legal custody and physical custody. Having legal custody over a minor child means you have a right to make legal decisions on behalf of the child, including decisions as they relate to religion, education, and medical decisions. The Court has the right to determine which parent will either have sole legal custody or if the parents will share legal custody. However, the Court’s decision on how legal custody will be granted is limited if there has been a domestic violence restraining order granted against one of the parents.
Pursuant to California Family Law, a party who had a restraining order granted against them is legally unable to get granted sole legal custody or joint legal custody of their children. This means that if you are a parent who is currently defending a restraining order, one of the things you risk is not being able to make legal decisions on behalf of your children. The reason for this is because Family Code Section 3044 states that the court cannot grant you legal custody, either joint or sole, if you have been found to perpetrate abuse against another party within the last five years, unless you take very specific steps to rebut that presumption. Rebutting this presumption takes time, as many of the steps outlined in Family Code Section 3044 require you to take specific programs and/or courses, some of which require you to attend for as long as 52 weeks.
The other legal right a parent typically has over their minor child is physical custody. Having physical custody of a minor child means who the minor child is going to live with and how the minor child will be shared. The Court typically has the discretion to award parents either equal timeshare of the minor child or can order for the child to live with one parent, and for the other parent to have a set visitation schedule. Similar to legal custody, if a restraining order that has been granted against one of the parents, the Court’s discretion on how physical custody will be granted is limited.
California law states that if you have a restraining order granted against you, a judge cannot grant you equal timeshare of your child. This means that if after a permanent restraining order is granted against you, you request for the Court to give you either primary custody of your children, or a 50/50 custody schedule, the Court would be unable to, if the restraining order was granted against you within the last five years and you have not rebutted the Family Code Section 3044 presumption.
If you are currently defending a restraining order, or have had a restraining order granted against you within the last five years and need assistance in determining what steps to take to regain to legal and physical custody of your children, our office is able to assist you with either defending the restraining order or advising you on what steps to take in order to regain rights over your minor child. Additionally, if you are a parent who is concerned for the safety of your children and want to know more information on how their rights and your rights as a parent can be protected through a restraining order, our office is also here to help you.
By Gisela Acevedo, Esq. Attorney at Contreras Law Firm