[Noah16]

How does a redtraining order affect shared legal custody?

[twinkiedooter]

Who has the restraining order against who? Please be a little more specific about this scenerio.

[Fr_Chuck]

If the order is for one parent against the other. Then they need to have a independent third party to do the child transfer back and forth.

[cdad]

how does a redtraining order affect shared legal custody?

Legal custody is having the ability to share and participate in making decisions for the child. It doesn't have to be done through face to face meetings and if done by phone then it wouldn't be extrodinary for there to be ground rules involved. Also another route is using some form of writing like registered mail or email. Even documents can be mailed back and forth in a timely fashion if needed. So depending on how the order is written can have an effect on what route is best for the both of you. If you haven't already you might think about writing up a parenting plan so there are guidelines for you both to refer to but remember its not an open invitation for abuse of any kind.

[cadillac59]

how does a redtraining order affect shared legal custody?

Yes, it does in California.

We have a presumption in the law (Family Code Section 3044) that joint or sole legal or physical custody in favor of a perpetrator of domestic violence committed within the last 5 years should not be ordered and is detrimental to the child's best interests. But you have to prove the basis for the DV by a preponderance of evidence, which would involve an evidentiary hearing.

[cdad]

Yes, it does in California.

We have a presumption in the law (Family Code Section 3044) that joint or sole legal or physical custody in favor of a perpetrator of domestic violence committed within the last 5 years should not be ordered and is detrimental to the child's best interests. But you have to prove the basis for the DV by a preponderance of evidence, which would involve an evidentiary hearing.

This may or may not be true because one of the sections refers to a conviction of domestic violence and a restraining order can come about without any type of conviction.

So for purposes of a restraining order the effect is limited to what the restraining order says. Upon conviction of Domestic Violence then FCS 3044 and its subsections can be applied.

That's the way Im reading it.

[cadillac59]

This may or may not be true because one of the sections refers to a conviction of domestic violence and a restraining order can come about without any type of conviction.

So for purposes of a restraining order the effect is limited to what the restraining order says. Upon conviction of Domestic Violence then FCS 3044 and its subsections can be applied.

Thats the way Im reading it.

FC 3044 doesn't require a conviction of DV for it to apply. It only states that a conviction within the last 5 years for DV establishes as a matter of law that DV occurred (FC 3044(d)(1)), which is a factual matter. In the absence of a criminal conviction the court would make a finding that DV occurred with the last 5 years at an evidentiary hearing (trial) on the matter, which might be done at the initial hearing on the TRO or be determined at trial later on.

So yes, you most definitely can invoke 3044's presumption in the absence of a criminal conviction for DV.

[cdad]

FC 3044 doesn't require a conviction of DV for it to apply. It only states that a conviction within the last 5 years for DV establishes as a matter of law that DV occurred (FC 3044(d)(1)), which is a factual matter. In the absense of a criminal conviction the court would make a finding that DV occurred with the last 5 years at an evidentiary hearing (trial) on the matter, which might be done at the initial hearing on the TRO or be determined at trial later on.

So yes, you most definitely can invoke 3044's presumption in the absense of a criminal conviction for DV.

So as it stands now if there is a restraining order is the trial for FCS3044 mandatory or is it optional ? And if its optional then how would the restraining order affect what the OP is asking ?

[cadillac59]

The FC 3044 presumption must be considered by the court. So, yes, in that sense it is mandatory. But there has to be a judicial finding that the DV actually happened, which of course is determined by a conviction for DV in the last 5 years or a finding by the court that there was DV as part of the trial on the DV case. Now, I would question whether that finding is properly satisfied by the ex parte issuance of a DV restraining order alone (which as you may know has to be set for trial within 20 days of its issuance, or 25 for good cause - FC 242). But once there has been a DV trial (either at the initial hearing or after a long cause hearing) I would say then yes, 3044 definitely kicks in and applies to any decision on legal or physical custody of kids. But don't forget it's a rebuttable presumption so it's still possible for a court to find it has been rebutted and allow joint or sole custody to the perpetrator of the DV.

Also, don't forget that a DV restraining order can contain requests for custody of kids, child support, spousal support if the parties are married, so these issues can sort of dovetail one another.