California Child Custody Cases and Existing Restraining Orders
Child custody cases have been known to cause even more stress, contention, and heartbreak than a divorce. Custody cases where parents were not married can be even more difficult. But the most difficult of all California child custody cases are often those that have restraining orders involved.
If there is a protective order in place, do not violate the terms of the order under any circumstances. Many assume that an attempt at reconciliation or actively seeking to behave in a civil manner to the other party to de-escalate is appropriate, but they are not. Neither civil behavior or reconciliation negate the protective order even if the attempts are coming from the protected party. According to California law, violating a restraining order can be charged as a misdemeanor or felony. If you are arrested during your child custody case, it can become complicated for you to get full or joint custody of your child. It could even negatively affect your chances of being offered visitation rights.
For example, if there is an order of protection in place against you with your ex listed as the protected party, you may be tempted to agree if they suggest to meet, talk, etc. Even if you are getting along perfectly, and you behave civilly during the “meeting,” the police can arrest if the meeting violates the restraining order. This scenario makes your child custody attorney’s job much more difficult.
When Protective Orders are Related to Domestic Violence:
If there is an order of protection in place related to domestic violence against a former partner, a child, or the child’s siblings, the alleged offender will have a tough time during a California child custody case. According to Family Code Section 3044, if the incident of domestic violence occurred is recent (within the last five years) the California court has a presumption that granting child custody to the perpetrator would not be in the child’s best interest.
While this presumption does not mean the alleged offender is automatically barred from obtaining custody, they have to overcome the presumption that they are a detriment to the child by presenting evidence to the court. The court will consider any restraining order that is in place, if the restraining order has been followed or not, if joint or sole custody is in the child’s best interest, if the alleged offender has completed an abuse treatment program, if any court-ordered parenting classes or alcohol/drug treatment programs were completed, if there were any additional instances of domestic violence, if the alleged offender is on parole or probation and whether or not they are compliant, etc.
If you need to discuss your Orange County, California child custody options and you are dealing with a restraining order, please get in touch with one of the experienced divorce attorneys at The Maggio Law Firm today.
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