What is “Family Code 3044”? What does it mean for my case?
It is quite common for restraining orders to appear as a part of a larger family law case, rather than as a standalone legal request. If you are in a family law case (divorce or parentage) and either you or the other party is seeking protection, the issuance of a restraining order can have significant impacts upon other aspects of your case. Today, we would like to discuss the impact of domestic violence upon the perpetrator’s parenting rights.
Restraining Orders Will Impact Custody & Visitation Rights
The issuance of a restraining order can have severe consequences in relation to the restrained party’s parental rights. At the most basic level, the restraining order may list the child(ren) of the relationship as a protected party. This will immediately impact the restrained party’s relationship with the child(ren). Such an order will likely require the restrained party to stay outside a minimum set distance of the child(ren)’s school, daycare, or other locations they spend time.
Even if the court determines that the child(ren) do not need to be individually protected by the restraining order, a finding that a parent has committed domestic violence can and will still impact that parent’s parental rights.
According to California Family Code Section 3044, when any party has been found to have committed domestic violence within the past 5 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…”
This means that as part of the issuance of the restraining order, that the protected parent will have sole legal and physical custody of the child(ren).
In addition to Family Code 3044, the court is also obligated to follow the parameters of Family Code 3020, which states:
- (a) …it is the public policy of this state to ensure that the health, safety, and welfare of children shall be the court’s primary concern in determining the best interests of children when making any orders regarding the physical or legal custody or visitation of children… children have the right to be safe and free from abuse, and that the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the health, safety, and welfare of the child.
- (b)…it is the public policy of this state to ensure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship, and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy, except when the contact would not be in the best interests of the child, as provided in subdivisions (a) and (c) of this section and Section 3011.
- (c) When the policies set forth in subdivisions (a) and (b) of this section are in conflict, a court’s order regarding physical or legal custody or visitation shall be made in a manner that ensures the health, safety, and welfare of the child and the safety of all family members.
In short, it is important to focus on the issues that the court must analyze: what are the needs of the specific child(ren), what are the specific allegations against the restrained party, and what orders are necessary to ensure the safety and wellbeing of the child(ren) in this case.
Depending upon the allegations, and the findings of the court, the court may make the following visitation orders:
No Visitation: With the issuance of a temporary emergency restraining order (prior to the first hearing), it is not uncommon for the restrained party to have no visitation until the first hearing. Depending upon the evidence and statements of the parties at the first hearing, the judge may then make any order regarding visitation that the judge believes is appropriate.
In particularly egregious cases, following the presentation of evidence, the court may order no visitation until the restrained party complies with various orders designed to ensure the safety of the child(ren). Such circumstances may involve heavy drug use, abuse of the child, or any type of action of the restrained party that shows it is in the best interest of the child to keep the child separated from this parent, and that interaction—-even supervised—-would be in opposition to the best interests of the child.
Family Therapy or Reconnection Therapy: This is a form of therapy utilized to help reconnect children with parents where there exists a history of abuse or trauma, or where some other damage to the parent child relationship exists. Family therapy helps create a supportive space for the child to heal from the trauma associated with the relationship, and create a safe space and provide support in reconnecting with the parent. This process can be long and time consuming, but overall has the opportunity to provide a great benefit to both the child(ren) and the parent.
When a court orders the party to attend family therapy or reconnection therapy, the therapist is the primary driver of the therapeutic plan. While the court or parties may attempt to provide guidelines, the ultimate decision making rests solely with the therapist. It is important to keep in mind that in order for this process to be successful, and before the reconnection can begin, the therapist must first build trust with all members of the family. Depending upon the number of children involved, this typically means building relationships with at least three individual people.
It is only once the trust between child and therapist develops, and the therapist is certain of trust and boundaries with the restrained party, that it is safe and appropriate to have sessions with the child(ren) and restrained party together.
For some parents, the slower speed of this is an excruciating process to endure. However, this process isn’t about the parents. The process of reconnection therapy is about supporting the child who has been exposed to domestic violence, endured domestic violence, trauma, and abuse.
Research has shown the drastic and long lasting repercussions of exposure to domestic violence during childhood. It impacts development at a cellular level, even impacting brain development. The seriousness of the consequence of this experience is why it is imperative to center the wellbeing of the child and keep reintroduction and reconnection to a pace that is healthy for the child. Reconnection needs to be healthy and in support of the child to prevent further harm and traumatization.
Professionally Supervised Visitation: This is also known as “agency supervision.” In this type of visitation, a professionally trained individual supervises the visitation. This person may be a mental health professional or a social worker, or another individual with the proper training. The supervisor’s role is to ensure that no harmful conversations or conduct occurs during the visit. The supervisor will create reports about the visits that are available to you, the protected party, and the court which will be reviewed and analyzed in determining when it is appropriate to change visitation type.
Non-Professionally Supervised Visitation: is where a family member, friend, or another non-professional supervises the visits. This visitation type has the same goal, as even with a non-professional, the supervisor’s role is still to ensure the physical, mental, and emotional safety of the child by looking for any harmful contact, conduct, or listening out for any inappropriate conversations. This can be a difficult format for visitation because often there are disagreements on who the parents feel safe with providing the supervision.
Unsupervised Visitation: This will be standard visits, where you have the freedom to interact with and schedule activities with your child like normal. The caveat to that is often, shortly after the issuance of a restraining order, the court will keep the duration of unsupervised visits very short, such as weeknight dinner visits, or a few hours on Saturday. This is certainly a step in the right direction, but can still be hard for the restrained parent to accept.
The Long-Term Outcomes of Restraining Orders Will Vary
Whether we are working with the restrained party or the protected party, we are always asked variations of the same questions: what does this mean for my family in the long run? Will they —or will I — be able to overcome this impact on their/my rights to custody and visitation?
As with all things with the law, the unfortunate answer is, it depends.
As referenced above when it comes to visitation, the court evaluates what the child(ren) has been exposed to or endured, and makes decisions about visitation based upon what will support the child(ren)’s best interests.
When evaluating custody, the remaining portion of Family Code 3044 provides a clearly defined way for the restrained party to overcome the presumption against them having custody. The Family Code requires an evaluation and analysis of the following factors:
- (A) Was the restrained party ordered to participate in a batterer’s intervention program, and did they complete it?
- (B) Was the restrained party ordered to participate in a program of alcohol or drug abuse counseling, and did they complete it?
- (C) Was the restrained party ordered to complete a parenting class, and did they complete it?
- (D) Was or is the restrained party on probation or parole, and have they successfully complied with those terms and conditions?
- (E) Had the restrained party complied with all terms and conditions of the restraining order?
- (F) Have there been any further acts of domestic violence or abuse?
Merely complying with all orders and meeting all conditions set by the court is not sufficient alone to overcome the presumption that it is in the best interest of the child(ren) that the restrained party does not share custody of the child(ren). The court must balance the analysis of the above factors with the best interests of the child.
Examples from our cases:
We represent both protected parties and restrained parties. In our experience we have seen all manner of circumstances and outcomes including:
- — The restraining order did not include the child(ren) as a protected party. At the trial, the judge allowed the restrained party to rebut the presumption against custody, so both parents were granted joint legal and physical custody.
- — After the court issued a 5-year restraining order, and renewed the restraining order for an additional 5 years, the court determined that the best interests of the child necessitated no contact (not even phone calls) with the restrained parent.
- — No visitation for either parent and the child(ren) was placed with a family member due to the violence perpetrated by the restrained parent and the protected parent’s failure to protect the child(ren) which contributed to the traumatization of the child(ren).
- — Mutual restraining orders between parents, with the child(ren) not covered by either restraining order. Both parents were ordered to complete drug counseling, parenting without violence, and general parenting classes.
- — The restrained party was granted primary care and custody of the child where the abuse was strictly between the parents. The court found that based upon other factors it was in the best interests of the child to be with the restrained parent.
When it comes to domestic violence — especially when children are involved — the legal system is required to always consider what is in the best interest of the child.
However, the process of arriving at that decision can be a long and complex journey. Remember, the court must account for: the allegations leading to the restraining orders, compliance with requirements of the restraining orders, parental rights, and more.
If you find yourself on either side of a restraining order, we cannot stress enough the importance of at least consulting with an attorney to discuss your circumstances. An attorney can help you understand what to expect and what are the potential points of concern.
The impact that domestic violence restraining orders will have upon custody and visitation rights can be far reaching and long lasting. For this reason, it is critical to remember that the best interests of the child(ren) — their mental, emotional, physical health and wellbeing — must dictate what occurs with custody and visitation.
By protecting those who have experienced domestic violence, whether one is a child or adult, from future incidents of abuse, and restoring healthier, more harmonious family relationships, the best possible outcome is that victims of domestic violence can overcome their previous pain to live happier, and healthy lives.
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