Whether a former couple was married or not, child custody cases can cause just as much heartbreak and tension as any divorce proceeding. In fact, cases where the individuals weren't married can result in even more difficulties, and this often requires the help of a lawyer.
When restraining orders are involved, though, it's an entirely different ballgame. For parents in a custody or visitation case where there is a restraining order against the father or mother, the following information is vital.
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During many child custody, visitation, or divorce cases, the parties involved may try to act civil toward each other. As any lawyer will attest to, this is a positive thing for both the parents and children. If there is a protective order in place, though, no amount of civility should make a person violate its terms. The court order does not vanish just because of an attempt at reconciliation – even if this attempt originates from the protected party.
California law dictates that violation of a restraining order can be charged as a misdemeanor or felony. An arrest or conviction during a child custody case can make it very difficult for an individual to get joint custody, full custody or even visitation rights to their child.
This means that, even if the former couple is getting along great and agrees to communicate or meet in direct violation of the order, police can still make an arrest. This makes a lawyer's job very difficult, so it's best to follow the protective order at all times.
California judges can grant protective orders in a variety of cases, but if the order is related to domestic violence against a former partner, a child or any of the child's siblings, things become very difficult for the alleged offender. This is because of Family Code, Section 3044, which says that, if the incident happened within the last five years, the courts have a presumption that granting custody or visitation to the perpetrator would be detrimental to the child.
This doesn't mean that an individual is immediately barred from getting custody of their child. The courts will allow them an attempt to overcome this presumption by presenting evidence. There are a variety of things the courts will consider, and this includes whether there is a restraining order in place and whether it's been followed. There are also other things the court will consider:
- Is joint or sole custody in the child's best interest?
- Has a batterer's treatment program been successfully completed?
- If the court ordered them, was a parenting class or alcohol and drug program completed?
- Were there any further instances of domestic violence?
- Is the individual on parole or probation, and if so, have they complied?
It should be noted that violation of a restraining order, even if there has been reconciliation, can result in being placed on probation. This means a violation will be noted along with serving probation, and this can make things very difficult.
In any situation where child custody is in question, it's beneficial if a person has an attorney on their side. When there is a restraining order, however, a custody lawyer is almost always essential. Judges assume that other courts make their decisions based on substantial evidence, so they'll typically trust that the protective order was issued with good reason.
This means the individual with the order against them will have an uphill battle, but it's not an impossible one. The best interest of the child is always taken into account, and any new evidence can sway a judge's decision. When restraining orders and child custody cases combine, it's always best to be on the safe side.
Are you in the middle of a child custody or visitation case? Restraining orders are only one potential problem. Contact us today at The Law Offices of William Edgar for a consultation to better understand your rights.