Restraining order child custody can be a powerful tool in helping abuse survivors in removing themselves and their children from potentially harmful circumstances, as well as allowing authorities to intervene and avoid further injury.
To get an overview of the steps you should undertake in these unfortunate circumstances, read ahead.
An Overview on Restraining Orders and Child Custody
When a person obtains a restraining order against another person, there is usually evidence that the target poses a threat of violence or harm. If the individual does not comply with the terms of the restraining order, it can be enforced legally by contacting local law enforcement officers.
When one spouse says the other is violent and fears that the person may harm him or her or any children from the relationship, the other spouse may seek a restraining order against him or her. The restraining order normally eliminates the prospect of custody and visitation rights in a divorce case.
Depending on the type of order and the restrictions offered, a restraining order usually provides general temporary freedom from potential danger by demanding that the other person stays away from the spouse and the children and does not contact them.
The Long-Term Effects of Restraining Orders
The order’s long-term ramifications, however, may have an impact on custody and visitation with the divorced spouse. Unless the parent tries to have the order overturned, the parent may have little or no right to see his or her children during the order time. The individual may be able to dissolve the order if there is evidence that no violence exists, provided by witnesses and presented by a lawyer.
Thus, by providing for and administering the award of legal remedies to victims of domestic abuse, legislators and the courts play a critical role in addressing the distressing problem of domestic violence. The grant of temporary custody of the children as an adjunct to a restraining or protection order is one of these legal reliefs.
Restraining Orders’ Effect on Custody Under Different State Laws
The states, rather than the federal government, oversee child custody after a divorce in the United States. As a result, each of the 50 states, as well as the District of Columbia (the nation’s capital), has its legal system. In most ways, state laws are identical.
Following a divorce, child custody is determined in the best interests of the kid. Mothers and fathers are required to be treated equally under the law. Neither parent has an automatic preference for child custody based on their sex.
Until the 1960s or 1970s, most states followed the “Tender Years Doctrine,” which stipulated that women were automatically entitled to custody as long as they were fit to be mothers. Following that period, equality ideals rose in popularity in the United States, both in divorce cases and in the workplace.
Domestic Violence and Restraining Orders in Some States
Most states have already passed legislation that not only defines and punishes “domestic violence,” but also provides relief in the form of temporary custody and visitation rights over children as an ancillary to the grant of a restraining or protection order, according to a survey of state laws conducted by the American Bar Association Commission on Domestic & Sexual Violence.
- Under Nevada law, an alleged victim of domestic violence by an abusive spouse or partner may seek a “temporary order for protection against domestic violence” as well as temporary custody of his or her minor child.
- In Alabama, state law not only grants temporary custody in such situations but also bans the alleged abuser from removing any child or children from the other parent or anybody with legal custody of the children.
- Aside from awarding temporary custody to a spouse or parent as part of the safeguards provided by a regular Domestic Violence Restraining Order (DVRO), California law also allows for temporary custody to be granted under an emergency protective order. This is typically a prelude to a DVRO, however, it lasts for a shorter time.
- A civil protection order that grants temporary custody to a parent or spouse in the district of Columbia may also regulate custody arrangements and visitation rights of the alleged abuser, who must prove that his or her visitation will not endanger the child or significantly harm the child’s emotional development.
Restraining Orders When a Child Is Involved
A restraining order is a short-term injunction issued by a judge prohibiting specific actions until a full hearing can be held. As a result, a restraining order is frequently used in conjunction with a civil or criminal action. In the context of a child custody dispute, however, restraining orders that give or take away custody of a child are most common in cases of domestic abuse.
Domestic violence restraining orders are usually obtained by a state court and require one spouse or partner to stop abusing their spouse or partner. Protection orders, injunctions, orders of protection and other similar phrases are used to describe restraining orders.
While a restraining order with child involved gives or takes custody, civil protection orders allow victims of domestic violence to seek legal protection from their husband or partner. These include stay-away orders, no-contact orders, vacate orders, property rights, access orders and orders for child support, monetary support, and relief for the victim — including medical and counseling bills — as well as orders for the defendants to receive treatment or counseling.
How Does a Restraining Order Affect Custody?
A restraining order attributes temporary custody of the child or children to the parent that underwent violence or abuse at the hands of their partner.
So, how does a protection order affect child custody?
It awards temporary custody of the children as a sort of momentary relief.
A temporary custody order is not the same as a permanent custody order. Permanent custody is a topic in various civil legal actions, such as divorce, paternity and filiation determinations, as well as other cases involving the care and well-being of children. However, it is clear that temporary custody can easily turn into permanent custody if the other parent is at fault for abusing their spouse or children.
Courts would typically follow the applicable state custody rules when making such decisions. The “best interest of the child” principle is a prevalent and prevailing aspect of state legislation governing permanent custody. This principle is commonly defined as the basis by which courts determine what kind of services, actions and orders will best serve a child and who is most equipped to care for a kid.
The Principles Regulating Child Custody in Case of Domestic Violence
While the “best interest of the child concept” guides courts in granting temporary custody of children before a restraining order against a parent is emanated in domestic violence cases, the objective here is to give victims of domestic abuse quick and effective remedies.
As a result, the US Department of Justice’s Office on Violence Against Women (OVW) established and released the “16 Guiding Principles for Effectively Addressing Child Custody and Parenting Time in Cases Involving Domestic Violence” through its Family Court Enhancement Project.
When it comes to child custody in domestic abuse situations, the guiding principles state that courts should consider the following factors when making decisions and/or issuing orders:
- Make decisions and/or make orders on child custody and parenting time that effectively address domestic violence, taking into account the nature and context of the abuse, as well as the consequences for children and parents.
- Allow for immediate and direct access to the courts for child custody and parenting time relief, including interim relief and enforcement of child custody and parenting time orders.
The Importance of Court-mandated Restraining Orders
Temporary restraining order child custody issued before the hearing will frequently fail to account for time spent with your children. There is a belief that the risk of further abuse is too significant to allow any sort of contact, even just allowing a parent to see their children. Even if the petition was primarily based on threats to your spouse or co-parent, rather than the children themselves, this remains true.
Court orders can be used to:
- Prevent the partner from visiting your shared residence.
- Contact with their spouse, past partner, or children is strictly forbidden.
- When a protected individual is present, they must leave public locations.
- They won’t be able to see their kids at school functions.
- Cut off their children’s access to the phone or the internet.
- Compel them to hand over their firearms or weapons for a period of time.
As a result, if your children are named as protected individuals in the order, this may disrupt your parent-child connection and jeopardize your efforts to obtain child custody.
What Happens When Someone Violates a Restraining Order?
Violations of a restraining order can result in criminal charges, including time in prison. They must be treated with respect.
Even if you have a custody order from a previous divorce or child custody case, you must follow the restraining order’s contact and communication restrictions. Further, you cannot exchange a child with restraining order.
If your spouse can establish that you disobeyed the court’s restraining order, he or she can use it against you in a subsequent divorce or child custody case, arguing that keeping the children with you is not in your children’s best interests. It is preferable to obey the temporary injunction and go to court rather than risk the penalties of disobeying it.
A restraining order has major implications for everyone involved: the alleged abuser, the survivor and, most importantly, their children. If you’ve been served with a temporary order, now is the time to present your case to the court before the restraining order has long-term implications for your child custody.
Further, we conclude the following after reading this article:
- A person obtains a restraining order against another person, there is usually evidence that the target poses a threat of violence or harm.
- The states, rather than the federal government, oversee child custody after a divorce in the United States.
- In a child custody dispute, however, restraining orders that give or take away custody of a child are most common in cases of domestic abuse.
- Violations of a restraining order can result in criminal charges, including time in prison. Thus, it is preferable to obey the temporary injunction and go to court rather than risk the penalties of disobeying it.
We hope that you can now make legally informed choices when it comes to restraining orders that affect child custody.
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