Trial Topic this week: Where should we do the child custody exchange?

Trial Topic this week: Where should we do the child custody exchange?

May 18, 2017

Many people going through a custody case in court are often considering where they should do the child custody exchange. One might think that should be easy, just pick the child up from school or at the other parent’s house. Those are the obvious choices when there is not a high conflict case. So what about the high conflict case? Where do we do the exchange when there is a restraining order? If the children are old enough, the court may make an exchange order that reads “the children will be exchange curbside at the parent’s home. The receiving parent will remain in the car and the other parent will remain in the house. The children will walk to the receiving parent’s vehicle.” This type of order is an attempt to reduce the animosity of the parents at an exchange. You see many parents feel that this is the appropriate time to take verbal jabs if not physical aggression at the other parent for all of the things that have been said or done. Usually in front of the children no less. Or the other parent will bring the new significant other to the exchange and then there are verbal gymnastics between the other parent and the new significant other. None of this is appropriate and definitely should not be happening in front of the children.

What happens when there is a restraining order? Many people will suggest a police station as the exchange location. We have successfully argued that this may not be the best place for the exchange to occur. The first problem is that many police substations close as they operate on normal business hours. If your exchange is Sunday at 7:00 PM there is a good possibility that the police substation will be closed and you and the other parent will be the only people in the parking lot. So if you insist on a police station, make sure that you know where the station is and the hours of operation and if they close. Second, many times the exchange occurs in the police station parking lot. The child exchange is happening really fast. By the time something happens in the parking lot, you have to do into the police station and summons an officer. By this time the offending party has already left and there is really nothing that can be done about it. When you go to court and try to bring this up, the offending party will deny it and you have no proof of what occurred. The police officer did not witness anything either so s/he will be of no help. Stated a different way, when you need a police officer it is already to late. Third, and more importantly, your children are witnessing their parents do the exchange at the police station. Is that in their best interest? The children know they have to go to the police station to be dropped off to the other parent. “Come on Billy, we are going to the police station to see Daddy.” I am not convinced that this situation is in the best interest of the children.

Now, to the trial that we just completed. A temporary restraining order was issued against father. The attorneys and parties basically agreed to keep the temporary restraining order for awhile to let things cool down and then the thought would be to dismiss the temporary restraining order. This is somewhat of a common way to resolve restraining order cases when the offending party really has not committed acts of domestic violence and the parties do not want to have a contested hearing on the restraining order. They will agree to continue the temporary restraining order for a period of time so let things settle down after the break-up. That is exactly what we agreed to do in this case. The issue came up of the exchange location and based on our argument, the exchange occurred at a public gas station. You may ask: GAS STATION? Well, it has been our experience that most gas stations have surveillance cameras. In the case, mother claims that father has not settled down and in fact, he acted violently during a custody exchange at the gas station. She testified in court that he sped away from the gas station and hit her with his car. As a result of this incident, she now wants a five-year restraining order because he is violent and because he is violent wants to limit the time with the children. We retrieved the surveillance footage from the gas station where the exchange occurred. Father did not drive erratically nor did he speed away. In fact, father was driving an electric vehicle. The surveillance footage also proved that father did not hit mother with her car as alleged. The court denied the request for restraining order.

We also successfully argued that mother in this case was using the domestic violence protection act as a sword rather than a shield. Some know that if there is a restraining order, they will have the upper hand when dealing with custody and visitation. We were also on calendar for an increase in father’s custodial time. Mother was attempting to get a restraining order and use Family Code, Section 3044 as a weapon in an attempt to keep his custodial time to a minimum. In light of the fact the restraining order was denied and mother had serious credibility issues, father’s custodial time was dramatically increased, as it should have been to begin with but for the restraining order.

The takeaway from this trial was the exchange location. If we would not have had the surveillance footage from the gas station, it may have been a different outcome. Think about the exchange location. Think about the impact of having the exchange location at the police station and the impact that it may have on your children.

The Edgar & Dow is dedicated exclusively to handling family law and juvenile dependency cases with offices located in Riverside, Temecula and Anaheim. Call us today at (888) 251-9618 to request an initial case evaluation.


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