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How a Domestic Violence Restraining Order Affects Divorce & Custody

DVRO Impact on Marriage & Custody

Divorce is a stressful process, and is sometimes instigated by dangerous behavior by a spouse that necessitates filing for a DVRO, or domestic violence restraining order. The details of a DVRO can vary. At their most basic, DVROs require the accused abuser to not engage in abusive or intimidating behavior, but may also require the abuser to leave your home (even if you both own it, or you do not own it), bar them from possessing a firearm, mandate the paying of certain expenses, and so on.

California is a no-fault divorce state, so a restraining order doesn’t change the fact that a court will handle the divorce as one resulting from mutually irreconcilable differences. But, the existence of a DVRO has a practical effect upon court proceedings for divorces and custody hearings, and can have a profound impact on child custody determinations.

If you share a home, the abusing spouse may be forced to leave.

Homes shared by married couples are considered community property, and thus during divorces may continue to be shared by both parties. However, as noted above, a DVRO can require that the abusing party vacate the home and stay elsewhere.

This requirement is very strict, and violating it can result in arrest, as well as serious consequences in subsequent child custody rulings

It may be impossible to engage in court mediation.

In most cases, California courts encourage the use of mediation to streamline the process of negotiating a divorce or child custody. However, if one party is barred from making contact with another, this may no longer be an option. In this case, it may be necessary to have the lawyers for each party meet and act as intermediaries.

The consequence of this is that the divorce process will take longer, and lawyer’s fees will be greatly increased.

If you wish to meet in mediation with a spouse against whom you’ve filed a restraining order, it’s wise to first consult with a divorce lawyer to see how to handle this without risking violation of the restraining order. In the State of California, you also have the right to bring a support person—a friend or family member—to any mediation session or family court hearing.

Evidence of domestic violence will likely bar the abuser from having any child custody rights.

If an abused parent seeks an emergency protective DVRO against their spouse, a judge may choose to award temporary custody to the parent, and may arrange supervised visitation for the other parent.

Once a custody case is opened, a judge will carefully review any accusations of abuse. According to California Family Code Section 3044, if a family court finds that a parent has committed domestic violence within the last five years, there is a legal presumption that the court should not grant the abuser sole or shared custody of any child.

It’s important to note that the abuse need not have been targeted against the other parent, or a child that the abuser is seeking custody of. California courts must consider any evidence of abuse against a spouse and the child(ren) in question, as well as any child the abuser is related to by blood or marriage, or any child the abuser had a guardianship or caretaking relationship with. The court must also consider abuse against any of the following relations of the other parent:

  • Parent (child’s grandparent)
  • Current spouse (child’s stepparent)
  • Fiancé(e)
  • Girlfriend/boyfriend
  • Roommate

The law indicates that if there is evidence of such abuse, a “rebuttable presumption” is invoked in which the perpetrator of abuse should not have any form of custody. Under a “rebuttable presumption,” the abuser must provide evidence significant enough to overcome this presumption. Such evidence may include:

  • Information indicating that it’s in the child(ren)’s best interest to stay with the perpetrator (i.e. the other parent is an even greater threat to the child(ren)’s wellbeing.
  • Evidence that the perpetrator has complied with the requirements of a restraining order, probation, parole, or any other existing legal requirements.
  • Records of the perpetrator completing relevant classes or treatments, such as alcoholism or chemical abuse treatment, parenting classes, or a 52 week long batterer’s treatment program.
  • Indications that the perpetrator has significantly changed their behavior for the better.

The bar for satisfying the rebuttable presumption required by law is high, and evidence such as the above does not guarantee that the perpetrator of abuse will be awarded custodial rights.

In addition, judges also have the right to impose conditions on any visitation rights they accord, such as disallowing overnight visits, or requiring supervision. A judge may also deny visitation entirely. In extremely serious cases, a judge may terminate all of an abuser’s parental rights. This is rare, but when it occurs, the elimination of rights is permanent.

Any right to spousal support for an abuser may be forfeited.

Similar to child custody, under California’s Family Law Code, an abuse conviction creates a rebuttable presumption in which someone found to have abused their spouse is not entitled to spousal support. This can have a profound impact on the financial circumstances of both parties, and have an indirect effect on child custody.

A “restraining order after hearing” has serious long-term child custody consequences for abusers.

After a divorce, the victim of abuse may be granted what is known as a “restraining order after hearing.” This is a long-term DVRO that may remain in effect for up to 5 years, and can subsequently be extended up to another 5 years, or put into permanent effect.

For abusers who are the subject of a restraining order after hearing, and who wish to someday receive visitation or custody rights, it is critical to obey all of terms of the DVRO. Failing to do so will incline a judge to grant a request to extend the DVRO.

Issues that have led judges to extend DVROs include:

  • Using violence against former spouse or children.
  • Calling the former spouse or children.
  • Sending text messages, email, or letters to the former spouse or children.
  • Contacting other family members that you are barred from making contact with.
  • Attempting to make contact with children outside of authorized, scheduled visits, such as by attending children’s educational or extracurricular events.
  • Visiting a family home that you are barred from visiting.
  • Damaging property.
  • Failing to comply with proscribed treatment programs, such as therapy, alcohol or drug treatment, etc.
  • Violating a requirement to not possess or purchase a firearm.
  • Threatening to do any of the above.

If you have previously been convicted of abuse, are now under a restraining order, and hope to someday have a relationship with your juvenile child, you must treat a DVRO as a test. Passing that test doesn’t guarantee that you will restore any rights, but failing it will almost certainly deprive you of the opportunity to do so.

DVROs can significantly complicate divorce and custody proceedings, and can continue to have a profound impact on the lives of everyone involved for years afterward. If you are involved in a divorce involving a DVRO, it’s extremely important to have the guidance of an experienced California family attorney in order to best preserve your legal rights. For more assistance, please call Toeppen & Grevious at (916) 400-4516, or send us a message using our website’s contact form. We will do everything we can to provide you with the guidance and support necessary to best navigate your family law case.