How Domestic Violence and Restraining Orders Affect Child Custody in California

Allegations of domestic violence carry potentially significant ramifications when someone is embroiled in a custody dispute. Whether such allegations will ultimately determine whether you are granted full or partial custody depends on the specific circumstances and unique factors of your situation. To get a better sense of your legal options and a path forward in the wake of domestic violence allegations, consider contacting the Castro Law Offices.

For context, according to California law, the term “abuse” is defined as the following:

  • Sexually assaulting another individual
  • Intentionally or recklessly hurting, or trying to hurt, someone physically 
  • Threatening another party to the point of reasonable fear
  • Behavior such as harassing or stalking someone

The above-described actions are deemed acts of domestic violence when they are committed against the following parties: 

  • Current spouse
  • Former spouse
  • Children
  • People with children
  • People related by blood
  • People related by marriage
  • People who are or have been dating
  • People who are engaged
  • People who currently or formerly lived together

A Brief Overview of Child Custody & Related Requirements

When it comes to assessing whether a parent should be granted custody of their child, or children, the major factors used by courts are the safety, mental health, and physical health of the child or children. Basically, suppose a California court determines a parent acted violently toward another parent, child, or sibling in the past five years. In that case, the judge has the authority to apply a “rebuttable presumption,” resulting in the abusive party being unable to attain sole or joint custody.

Physical vs. Legal Custody

The Superior Court of California identified some of the key distinctions between physical custody and legal custody. Let’s address the ladder first. Legal custody is defined as a parent “who makes important decisions for your children (like health care, education, and welfare).” Basically, this type of custody provides a parent with the right to make decisions about the life or welfare of their child. 

In contrast, physical custody is defined as a parent who has the right to have their child reside in their home. Basically, physical custody covers where the child, or children, will be domiciled. 

Domestic Violence & Abuse Can Affect Custody

When there are allegations of domestic violence and abuse in a custody dispute, the impact on the underlying legal proceedings can be significant. Why? Because California courts agree that it is detrimental to a child’s health and well-being to remain in a home where domestic violence or abuse is taking place. This is primarily why court orders in California custody disputes have to be made in a manner that ensures the safety of the child and the family members of the child. As a result, California custody law requires judges to assess allegations of domestic violence and abuse when deciding how to allocate legal and physical custody between two parties.

Restraining Order: What Is it and What Does it Affect?

In California, the interplay between a restraining order and child custody may be extensive. First, let’s review the different types of restraining orders that can be obtained in California:

  • Automatic Temporary Restraining Orders (ATRO) – This is a fairly common restraining order that is generally instituted after a spouse decides to file for divorce. An ATRO is usually ordered to help ensure the dissolution process goes smoothly and the risk of physical conflict is mitigated. 
  • Protective Order (also known as a Domestic Violence Restraining Order) – A protective order can be requested during a divorce case in California to ensure protection from one party who is alleged to be suffering serious emotional or physical harm from the other party. If a protective order is instituted, it can set limits on the behavior of the party who committed the violent acts, particularly when there are reasonable grounds to fear violence against a spouse or children. 
  • Emergency Protective Order (EPO) – An EPO is typically instituted if abuse is determined to be imminent and the courts are not open. In this scenario, a victim of domestic violence may request the assistance of law enforcement in filing for and obtaining an EPO. 

How Does a Restraining Order Affect Child Custody

A restraining order can impact a child custody dispute both in the immediate and long term. In the immediate term, it can mean a parent is prohibited from seeing their children. For example, an emergency protective order (EPO) was initiated, and the spouse who filed the order believes they, or their child, is in danger of abuse or abduction by the aggressor. The EPO is effective immediately and lasts for one week. If the aggressor lives under the same roof as the victim, a judge will typically order the aggressor to leave the premises during this period. If, on the other hand, a temporary restraining order (TRO) is initiated, the order lasts between 20 and 25 days. When the TRO ends, a judge will determine whether it will be made permanent or not. In the long term, evidence of a restraining order can potentially influence whether you are eligible for full or partial custody. 

Impacts on Visitation 

As mentioned above, custody is determined primarily by a court’s assessment of the child’s best interests. Similarly, visitation rights are also assessed using this type of “best interests” criterion. Generally, it is not in a child’s best interest to be exposed to acts of domestic violence. As a result, if there is reason to believe one of the parents is being abusive, supervised visitation and overnight visitation can be outright banned by a court as a way to provide domestic violence help to the victim.

Resources for Victims of Domestic Violence

If you have questions about California child custody laws and how domestic violence impacts custody disputes, contact Castro family law today and schedule a confidential case with an experienced family law attorney

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Complimentary Consultation for Domestic Violence Restraining Order Matters

Castro Law Offices is currently providing complimentary 30-minute consultation for individuals with Domestic Violence Restraining Order matters in counties of Marin, Sonoma, Napa, San Francisco, Alameda, Contra Costa, and Solano*