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2011: What is the Effect of Domestic Violence and Restraining Orders in Regards to Custody and Visitation in San Diego Superior Court for a Divorce, Paternity or Legal Separation?

When there are children of a divorce, legal separation or paternity, in San Diego Superior Court, the parents must attend the mandatory mediation at Family Court Services with a Licensed Clinical Social Worker who is a mediator if the parents do not agree on the parenting plan. In a paternity, legal separation or divorce, many factors are taken into account when a written recommendation is made as San Diego is a recommending county. One of the factors is whether there was domestic violence against a spouse in a divorce or legal separation or against a parent if a paternity case.

If the San Diego Superior Court Judge makes a finding of domestic violence, this is considered in the order for the parenting plan. While confusing due to the different California Family Law Code Statutes, there are factors which are looked to. Domestic violence finding can be substantiated by evidence that one parent recklessly or intentionally attempted to cause or caused bodily injury, sexual assault, placing a parent in reasonable apprehension of bodily harm which is imminent and serious, assault, threatening, striking such as a battery, harassing, and destroying personal property among others. If there is a conviction of domestic violence within the previous five years, this can also lead to the same finding.

If a finding of domestic violence is made, there is a presumption {which is rebuttable by evidence of rehabilitation and others} that an award of joint or sole legal or physical custody is detrimental and not in the best interests of the child or children. This is an exception to the doctrine of frequent and continuing contact. In addition, a temporary restraining order can be issued by the Judge upon a finding of domestic violence with an application for a restraining order which can also be made permanent. If a restraining order is granted, then there are other significant consequences such as that the Judge should not make custody and visitation orders which are not consistent with the restraining or protective orders. In addition, the Court should not be considering the absence of the child or children from the family residence. Furthermore, a parent who is the restrained party cannot own, possess or have any firearms per California law.

A temporary restraining order based upon allegations of domestic violence conduct can be obtained on an ex parte [emergency] basis and with no notice to the other parent. In these cases, the Judge reviews the allegations and decides if [based on the evidence presented in the declaration and the pleadings] a temporary restraining order should issue. If the Judge feels that the evidence meets the legal standard to issue a temporary restraining order, then the Judge will sign the order. The temporary restraining order must be served and a hearing is set within 21 days for a hearing as to whether a permanent restraining order should be granted. During this time period, the restrained party must obey the court order and needs to file their response with evidence and/or witnesses and prepare for the permanent restraining order.

If you have a domestic violence or temporary restraining order case in San Diego, please feel free to contact us for a confidential consultation.

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