Health & Fitness
Can I Be Denied Custody Of My Children With A Restraining Order?
Yes. The California Domestic Violence Prevention Act (DVPA) or simply domestic violence restraining orders are aimed at protecting the family, including children who have been exposed to domestic violence. Under the Family Law Code 3044, there is an automatic presumption that if one parent, child or a sibling has been exposed to domestic violence by the other parent within the last five years, the court can presume that sharing custody with the other parent is not a good idea and can award sole legal and physical custody to the abused parent.
For those who may not understand, sole legal and physical custody means that one parent has sole control over the legal rights of your child and does not require your consent. This could mean you have no rights to stop the other parent in obtaining a passport or preventing the relocation of your children to another county or state. Sole physical custody means the children will live primarily with the other parent and you may or may not have visitation with your children or the court may place conditions for you to perform before you can see your kids. These are all good ways to protect the family from further violence, however there are situations when the automatic application of Family Law Code 3044 would be detrimental to the children. Remember this application of the law is typically automatic unless the parents are able to negotiate an alternative relief. I would suggest an attorney for those types of negotiations.
Like I said, 3044 allows the court to presume that it would not be in the child’s best interest for the parents to share custody because of the abuse. However, this presumption can be rebutted, which means it can be challenged if the alleged abuser can demonstrate completion of any items listed under 3044 b (1)-(7). What you may have to demonstrate is dependent on the specific facts of your case. For example, you may have to demonstrate completion of a batterer's intervention program, of you may have to demonstrate participation in a drug or alcohol support program as a way to convince the court in sharing custody of your children.In most cases, it is hard for a parent to rebut the presumption and I’ve seen a greater success in those cases where I’ve negotiated a settlement. If you have any questions, please feel free to contact me.
