Dealing with a child custody arrangement is one of the most stressful experiences parents may face. When one of the people fighting for child custody or visitation rights has a domestic violence restraining order, the case is significantly more complicated and almost always requires a qualified child custody attorney to ensure that the children receive an outcome that is in their best interests.
Understanding Custody Arrangements
Before discussing how a domestic violence restraining order affects custody, it is important to understand legal terminology regarding custody. There are two types of custody:
- Legal custody refers to the custodian(s) responsible for making major life decisions for the children, including choices regarding education, religion, and medical treatment.
- Physical custody refers to the person who must legally provide a safe and secure home for the children.
Both types of custody can be full, in which one person is the main decision-maker or caretaker, or joint, in which two people share the legal rights regarding decision making or the responsibility of providing a home.
Understanding a Domestic Violence Restraining Order
A domestic violence restraining order (DVRO) is granted when a judge determines that a person has committed or threatened to commit abuse against someone that they have a close relationship with. This includes relationships such as:
- A spouse or domestic partner
- A roommate
- A person that they are divorced or separated from
- Someone that the person is dating or used to date
- The other parent of the person’s child
- Another close relative such as a sibling, parent, or grandparent
In other words, a judge issues a DVRO when they determine that someone is a threat to another person that they are close to. A person must file a DVRO against someone for a judge to legally issue it. Any DVRO can affect a child custody case, whether it is against the other parent or any of the aforementioned people. Any history of violence is reason for concern in a court’s eyes.
How Domestic Violence Restraining Orders Affect Custody
Domestic violence is different than child abuse because the victim must be older than 18 years old. However, research shows that domestic violence can negatively affect children, especially when they witness the abuse. In some cases, the emotional impact of children who experience domestic violence in their homes can be similar to those of children who are abused and neglected.
Due to the mental and emotional effects that domestic violence has on children, judges typically will not award custody to the person with the DVRO if they determine that the domestic abuse is likely to occur again.
Parents with a DVRO are often only granted limited visitation rights, which are strict schedules or rules regarding when they can legally visit their children. Often parents may not visit the children as frequently as they wish, only can visit the children with the supervision of a third party, or are not allowed to have the children spend the night at their house.
How Someone With a DVRO May Obtain Joint or Full custody
This does not mean that a parent facing a child custody case with a DVRO should not develop a strong case. There are situations in which a judge may grant full or joint custody to a parent with a history of a DVRO. Factors that a judge considers are when the DVRO was issued, the behavior of the person since the DVRO, if the person completed all of their court-ordered programs, and the living environment of the other person fighting for custody.
In all custody cases, the interests of the child are the judge’s main priority, and it is their job to do their due diligence when assessing the parents’ fit for custodial rights. This means that even though one parent has had a DVRO issue, they may still be the best option for custodial rights. Judges do consider the length of time that has passed since the DVRO and understand that with proper treatment, some people can dramatically improve their behavior and become fit to be a caregiver.
If someone with a record of a DVRO awarded within the past five years wants full or joint custody of their children, the judge will consider the following seven factors:
- What custody arrangement is in the best interest of the children?
- Does this person have a record of any other domestic violence?
- Has the person followed all the conditions of any restraining orders against them?
- Did the person finish their year-long batterer intervention course?
- If any alcohol or drug programs were mandated by the court, has the person finished them?
- If any parenting classes were ordered by the court, has the person finished them?
- Has the person followed all terms of their parole or probation?
The judge will use the aforementioned factors to determine custodial and visitation rights. If you are the victim of domestic violence or have a history with a DVRO, and are facing a child custody case and need advice, our lawyers at Lonich Patton Ehrlich Policastri offer free, 30-minute consultations to assess your unique needs. All consultations will be virtual due to COVID-19 in order to maintain the safety of our partners and our clients.
Our experienced trial lawyers at LPEP are some of the most reputable child custody attorneys in the San Jose and Silicon Valley areas. Schedule your free consultation online here.