Lasting Effects of “Temporary” Restraining Orders on Child Custody

By Brian Mullen, Esq.

Domestic Violence Restraining Orders (“DVRO’s”) are governed by Family Code §6200 et. seq., also known as the Domestic Violence Prevention Act. In 2014 the legislature made a significant change to Family Code §6340(a) by mandating that any Orange County child custody, visitation and support orders entered while the DVRO is operative survives the expiration of the DVRO.

This change can have profound reverberations in a domestic relations case, especially if the DVRO is granted at the beginning of the case. Take the following scenario that has become increasingly common in light of this legislative change.

On the parties’ date of separation, Husband and Wife have an argument in their Newport Beach home. Wife decides to move out and takes Child with her.  She immediately moves into a friend’s home in Laguna Beach and files a request for a Temporary Restraining Order (TRO). She tells the Court that Father pushed her into the wall, and she needs a TRO to protect Child and her from Father. Mother elects not to notify Father of the TRO hearing. The Court grants Mother’s request for sole legal and physical custody and no visitation for Father. The court sets a hearing three weeks later on whether to extend the length of the TRO. Later that night, the Sheriff serves Father with a TRO at the family residence.

Three weeks later, the Court denies Mother’s request for a permanent DVRO.  Feeling vindicated, Father asks for custody of Child. The Court tells him that it has no basis to make custody orders because the TRO has expired and that the current custody orders are operative until further order of the Court. Thus, regardless of the outcome of the TRO hearing, Mother walks out with custody. How did we get here and what is Father to do?

Father has a point to feel pummeled by this process. First, the Court granted the TRO even though Mother failed to notify him of the hearing. In Orange County, the local rules require 4 hours of notice to the other party of a TRO hearing. However, notice is not required if good cause can be shown to dispense with it. The local rules do not define “good cause.” Practically speaking, the notice requirement is rarely found to be a basis to deny a request for a TRO.

Even if Father had the minimum 4 hours of notice, the ex parte hearing for a TRO will normally be held on the same day that notice is afforded to make it difficult for the other party to make it to court on time and respond. Pursuant to Family Code §6326:

 An ex parte order under this article shall be issued or denied on the same day

 that the application is submitted to the court, unless the application is filed too

 late in the day to permit effective review, in which case the order shall be issued

 or denied on the next day of judicial business in sufficient time for the order to

 be filed that day with the clerk of the court.

In Orange County, a request for a TRO is normally reviewed by the judicial officer in chambers and not on the record. If the other party has no notice, the moving party’s declaration is the only evidence considered by the Court. Pursuant to Family Code §6300, a TRO must be issued if the moving declaration shows “… to the satisfaction of the court, reasonable proof of a past act or acts of abuse. The court may issue an order under this part based solely on the affidavit or testimony of the person requesting the restraining order.”

In our example, Mother tells the Court that Father pushed her into the wall. In support of her allegation, she attaches a picture of a mark on her arm that looks like a bruise. These facts will likely lead to the court issuing the TRO for three (3) weeks.

Even though Father wins at the TRO “prove-up” hearing, Mother still has custody. Prior to the 2014 change to Family Code §6340, neither party would have custody when the TRO expires. The parties were restored to their statuses before the TRO was filed. If one of the parties wanted custody, he or she would have to file a Request for Order. As happens in the majority of domestic relations cases involving children, a period of time exists where no custody orders are in place. The Courts expect the parties to develop a voluntary child-sharing schedule until the court makes orders.

However, with the legislative change, Father has to file a Request for Order and wait for a hearing 75-90 days away while he has no custody order visitation orders in the interim. Until Father receives orders, Mother is the sole authority over all decisions affecting the child, including whether Father has any visitation whatsoever. Many times, the wait is longer. Often hearings will be continued so newly retained attorneys can familiarize themselves with the case, or the Court orders the parties to return after a custody evaluation is completed. These delays could extend the TRO months.

By the time of the hearing on Father’s RFO for custody and visitation, which at the very least is conducted 100 days after Mother has been enjoying sole legal and physical custody, he will have the delicate task of convincing the court that the status quo should be changed. Father will get visitation, but his chances of primary custody are roiled by the interim custody orders.

What’s the lesson? If you are a victim of domestic violence, file as soon as possible to obtain immediate protection and attach documentary proof of the abuse, if available. If you are being accused of domestic violence, oppose the request for the TRO if you receive notice of the hearing and file your Request for Order for custody and visitation as soon as possible thereafter. If you do not receive notice, and the Court grants the TRO, file your RFO immediately after you are served and prepare for and attend the prove-up hearing. You may significantly reduce the amount of time you are subject to the court’s no visitation orders.

Family Code §6340 may have been designed to reduce uncertainty after expiration of the TRO. However, in cases where the TRO is denied at the prove-up hearing, the custody orders that remain are often based on flawed premises.