Sharing Child Custody with a Restraining Order

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 What Is a Restraining Order?

A restraining order, also known as a protective order, is an order that is issued by a court to protect an individual, a business, or the general public from harm in situations where there are allegations of:

A restraining order gives the court the power to order an individual to stay a certain distance from another:

  • Home;
  • Individual;
  • Group of individuals, for example, all of the other members of a family in a domestic violence situation; or
  • A business.

A restraining order may also contain a no contract provision which orders the individual from making any type of contact via:

  • Phone;
  • Email;
  • Letter or mail;
  • Delivery; or
  • Other types of contact.

When a court believes that an individual has committed a pattern of abuse against another individual or has committed a single serious act of violence against another individual, the injured party may seek and obtain a restraining order. A restraining order is enforceable in all geographical locations.

In some cases, spouses will seek restraining orders against one another during a divorce or separation period. Issues may also arise involving restraining orders and child custody.

Are There Different Types of Restraining Orders?

There are several different categories of restraining orders that a court may use, including:

A temporary restraining order (TRO) is a restraining order that is in effect until a court holds a hearing to review the facts surrounding the need for the restraining order. Typically, TROs have a set expiration date or will last until the scheduled court hearing.

At the hearing, the court will determine if a long term restraining order is necessary. If one is needed, the court will determine how long it should last.

An emergency protective order (EPO) is a restraining order that is issued by law enforcement after they respond to the scene of a domestic violence case. EPOs are effective immediately and typically do not last longer than a week.

A permanent restraining order (PRO) is put into effect after the court case is finalized. These orders may last for years, if not forever.

Specific examples of PROs include:

  • Domestic violence restraining order: These are specifically ordered after a domestic violence case. These orders can last for years, or in some cases, for the abuser’s lifetime. The order can protect children, other family members, roommates, and/or the domestic violence victim’s current romantic partners;
  • Civil harassment order: When victims need protection from people who are not family members, the type of restraining order is a civil harassment order. In these cases the abuser is usually a friend, acquaintance, or stranger;
  • Workplace violence protection order: Some states allow employers to ask the court for a restraining order to protect their employees from:
    • harassment;
    • violence; or
    • threats of violence in the workplace;
  • Juvenile restraining order: A juvenile restraining order is similar to a civil harassment order, but is intended to protect a juvenile, an individual under the age of 18 or majority, from harassment or threats of violence by an individual who is not a family member. The order can be issued against another juvenile or an adult; and
  • Dependent adult or elder abuse order: Some adults, because of their age, mental, or physical incapacity, may be at risk of abuse. A restraining order can be obtained on their behalf to protect them against potential abusers.

How Long Do Restraining Orders Last?

How long a restraining order will last will depend upon the type of order and the specific facts of the case. A restraining order that is issued before the court has the opportunity to review the facts typically only last for a few days or weeks.

In general, the restraining order will not expire until the court holds a hearing. At the hearing, the court will hear from both sides and determine whether or not a permanent restraining order is necessary and appropriate.

As noted above, permanent restraining orders may not expire for years. There are some states that limit how long a restraining order can last but will allow the court to issue a longer order depending on the circumstances.

For example, in Texas, domestic violence restraining orders can only last for 2 years. The court, however, may issue a longer order if certain facts exist.

Either of the parties can file a request with the court to modify, extend, or remove a restraining order.

Can I Share Custody With My Ex?

Restraining orders can create serious issues when it comes to child custody, restraining orders can cause serious problems. Ex-spouses may share custody if they are both in good standing with the law.

Criminal activities or violence will put the parent seeking custody at a serious disadvantage. Any instances of past or present abuse will be considered by the family court issuing the custody order.

In many states, if the court decides to grant some custody rights to the parent who committed abusive acts toward a child or toward the other parent, the court must write a statement explaining why that decision was made.

What Is a Rebuttable Presumption?

If one parent has committed an act of domestic violence against a child or the other parent, the court will view the case knowing that there is a rebuttable presumption that it will not be in the best interest of the child for the offending parent to have custody. This means that the court will presume that it would be best for the parent who committed the abuse not to have custody.

That parent, however, may challenge the presumption in court and present evidence as to why they should be allowed to have custody rights.

How Can I Visit My Child When There’s a Restraining Order with My Ex?

Co-parenting with a restraining order can present many challenges. Typically, the restraining order will outline the conditions of co-parenting while following the order.

The most important thing to do is to follow the requirements provided in the order. If an individual has an order against them, following the terms of that order will demonstrate to the court that they are acting responsibly and they may be awarded additional custody rights in the future.

One major issue in these situations is communication. Typically, a restraining order prohibits communication between the perpetrator and the protected individual.

In situations involving co-parenting, the parents should not communicate as ordered. They can use a trusted third party, such as an attorney, to communicate through.

If the parties are comfortable doing so, they may also request that the court allow them to communicate solely regarding co-parenting issues. This, however, may not always be feasible so, if done, communication should be documented in writing, such as email or text, so there are no questions regarding what was said and no possibility for false accusations.

Another issue that arises is when the restraining order requires the parties keep physical distance. It may be necessary to schedule to attend family events, such as birthday parties, at separate times.

Do I Need a Criminal Lawyer?

If you have been charged with domestic violence, it is essential to consult with a criminal lawyer, as this may affect many areas of your life outside your criminal record. If you are the victim of abuse, it is important to consult with your lawyer to determine what steps you can take to keep yourself safe.

Your lawyer will represent you both in negotiations and court appearances and ensure your best interests are protected. Your lawyer can also provide advice regarding possible outcomes and the effect of restraining orders on your case.

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