How Does a Restraining Order Affect Custody?

The intricacies of custody battles become even more complex when a restraining order is involved. Many individuals embarking on this often challenging journey naturally question, “How do restraining orders affect custody?” This article aims to shed light on this nuanced topic, providing clarity on the potential implications of restraining orders and child custody.

Domestic violence between intimate partners and spouses has become a prevalent problem in the United States. According to the Center for Disease Control and Prevention, 1 in 4 women and 1 in 7 men experience physical violence by an intimate partner at some point in their life.

Unfortunately, caught in the crossfire of domestic violence are the children. Exposure to domestic violence at home will inevitably result in emotional damage and pose adverse effects to these children as they grow up. Children who witness domestic violence are also more likely to suffer an increased risk for various mental health issues, such as:

Finally, and of significant concern, children who are exposed to domestic violence often become victims of violence themselves.

Lawmakers and the courts play a vital role in addressing the disturbing problem of domestic violence by providing for and administering the grant of legal relief to victims of domestic violence. One of these legal reliefs is the grant of temporary custody over children as an ancillary to a restraining order child custody.

Custody of a child is typically understood in two forms: physical custody and legal custody.

Physical custody of a child refers to parental rights to have the child or children live with the parent or guardian. On the other hand, legal custody of a child refers to parents’ rights to make decisions about certain aspects of their child’s (or children’s) lives (i.e., medical care, education, etc.)

In general, a restraining order refers to a judge’s short-term order forbidding specific actions until a full hearing can be conducted. Hence, a restraining order with child involved is usually ancillary to a civil or criminal case. However, in the context of a child custody case, restraining orders that either grant or remove custody over one’s child are most typical in cases involving domestic violence.

Restraining orders, often issued by state courts in domestic violence scenarios, can significantly influence custody arrangements. Typically, a restraining order family court can establish temporary custody, usually given to the victim of domestic violence. However, it's crucial to note that this is different from permanent custody, which is decided separately in civil matters such as divorce or paternity proceedings.

Although the courts employ the "best interest of the child" principle in determining custody, the immediate priority during the issuance of restraining or protection orders in domestic violence cases is to provide swift and effective relief to the victims. To aid the courts in effectively managing such situations, the Office on Violence Against Women (OVW) issued 16 guiding principles for handling child custody in domestic violence incidents.

At the state legislative level, a survey of state laws conducted by the American Bar Association Commission on Domestic & Sexual Violence revealed that 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 ancillary to the grant of a restraining order against children custody. 

The term "temporary restraining order child custody" is used here, indicating the legal approach of granting short-term custody rights while a restraining order is in effect.

Finally, at the federal legislative level, the Violence Against Women Act (“VAWA”) provides further protection to victims of domestic violence. The VAWA treats the act of crossing state lines by any person against whom a protection order has been issued by state courts, and in doing so violating said protection order, as a federal crime. 

Furthermore, the VAWA also mandates that state courts and law enforcement agencies recognize and enforce protection orders from other U.S. jurisdictions as if they were issued in their jurisdiction.

Including the provision for temporary custody rights in a restraining or protection order is one of many legal reliefs extended to victims of domestic violence. It's crucial, then, for lawyers to have a thorough understanding of the state and federal rules surrounding this relief, including issues involving child custody and restraining orders. This know-how enables them to provide timely and relevant legal advice to those who need it the most.

Moreover, being well-versed in such laws is instrumental in ensuring better enforcement of domestic violence statutes. The ultimate aim is to mitigate the adverse impact of domestic violence on its victims, particularly the children caught in the crossfire.