Domestic Violence Restraining Order: What It Does and How It Impacts Custody

Going through a divorce and/or custody matter in itself can be a difficult time for those involved. For those who find themselves in a divorce/custody case involving domestic violence, the case can become even more difficult. At Mello & Pickering, LLP, when we recognize a situation involving either emotional abuse or physical abuse, we usually discuss filing a request seeking a Domestic Violence Restraining Order (DV-RO).

It is important for parties to know that a restraining order is not limited to preventing physical contact between the parties and it is not limited to protection of the requesting party alone. The following are examples of the protections that the requesting party may seek for his/herself as well as other family members:

• Move-out order requiring the restricted party from remaining in the shared residence (if any).
• Orders preventing the restricted party from recording any communications with the protected party.
• Orders allowing the protected party to have exclusive care and control of any shared pets (as well as a stay-away order for said pets).
• Exclusive use and possession orders (i.e. allowing the protected party alone to use the shared car).
• Custody and visitation orders.
• Orders requiring the restricted party to take batterer’s intervention classes.
• Orders requiring the restricted party to pay the protected party’s attorney fees and costs.
• Orders for support.

Impact on Your Case

If it is determined by the Court that the requesting party has satisfied his/her burden of proof seeking a DV-RO there is a finding of a Family Code Section 3044 Presumption. Family Code Section 3044 states: “(a) Upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence against the other party seeking custody of the child or against the child or the child’s siblings within the previous five years, there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child, pursuant to Section 3011. This presumption may only be rebutted by a preponderance of the evidence.” This presumption is clearly problematic for the restrained party should he/she request sole or joint physical or legal custody later on. Such a request would require an evidentiary hearing so as to determine whether or not the presumption has been overcome.

Here at Mello & Pickering, LLP we have extensive experience with family law domestic violence cases. With 40 years of combined experience in family law, we will listen to the facts of your case and can help you come up with the best possible strategy to ensure you have a strong case.