Why You Should Never Agree to a Restraining Order in California if You Have Kids (Family Code 3044)
When you are served with a Request for Domestic Violence Restraining Order (DVRO), a million thoughts go through your head. Depending on the circumstances, you may have suspected this was coming or you may be completely caught off-guard. You may feel angry, betrayed, confused, or even scared.
After the shock wears off and you start considering what you should do next, you may decide to file a response, hire a restraining order attorney, or just show up at the hearing.
There is no one right answer about how to proceed when you have been served with a DVRO, but there is one thing you should never do: agree to a restraining order.
Family law attorneys are almost universally in favor of parties reaching agreements and settlements. So why would one of us make a blanket statement that you should never agree to something filed against you? Keep reading.
Family Code Section 3044 – Only Agree to a Restraining Order if You Want to Lose Custody of Your Children in California
What would be so bad about a restraining order? I don’t want to see her anyway!
No matter what the outcome of the restraining order is, you probably aren’t going to be best friends with the protected party after the hearing. The prospect of being restrained from seeing or talking to him or her may sound like a relief after all of this! Oftentimes, the protected party does not even request orders relating to child custody in the DVRO, so this has nothing to do with the kids, right? Wrong. If you agree to a restraining order, you are voluntarily triggering the domestic violence finding and presumption of Family Code 3044.
Family Code § 3044(a) provides:
Upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence within the previous five years against the other party seeking custody of the child… 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, pursuant to Sections 3011 and 3020. This presumption may only be rebutted by a preponderance of the evidence.
A “finding” of domestic violence is made when the restrained party chooses not to oppose the DVRO and agrees to the restraining order.
Under Section 3044, a finding of domestic violence against the other parent carries with it a rebuttable presumption that an award of sole or joint physical or legal custody of a child to the abuser (i.e. the parent who agreed to the restraining order) is detrimental to the best interest of the child.
This is because when it comes to child custody, the public policy of the State of California is to ensure the health, safety, and welfare of children. According to the legislature, it is detrimental to a child if domestic violence is perpetrated in the child’s home.
Family law judges are required to grant reasonable visitation rights to parents unless visitation would not be in the child’s best interests. It is not in a child’s best interests to be exposed to domestic violence, so the court can protect the child by, for example, ordering supervised visitation (meaning a third party must supervise all visits between the child and the restrained parent) or banning overnight visits.
I Would Not Have Agreed to a Restraining Order if I Had Known About the Family Code 3044 Presumption
Essentially, this argument boils down to this: I entered into this agreement based on a mistake of law. Specifically, I did not know about the 3044 presumption, and if I had known about it, I would not have agreed to have a restraining order placed against me.
In fact, the argument that a party responding to a domestic violence restraining order should be entitled to notice of the 3044 presumption at the time of the restraining order hearing is such a great argument that it has made its way up to the California Court of Appeal.
In Sabbah v. Sabbah (2007) 151 Cal.App.4th 818, Ramadan Sabbah challenged the trial court’s denial of both his new trial motion and his application under Code of Civil Procedure § 473(b) for relief from a restraining order against him. He contended, among other things, that the trial court erred by failing to give him notice under Family Code section 3044 that a domestic violence finding against him would adversely affect him in custody determinations.
Ramadan Sabbah argued that Section 3044(f) mandates that parties be informed of the presumption, providing: “In any custody or restraining order proceeding in which a party has alleged that the other party has perpetrated domestic violence in accordance with the terms of this section, the court shall inform the parties of the existence of this section and shall give them a copy of this section prior to any custody mediation in the case.”
Is the California Family Court Required to Inform Parties of the Existence of Section 3044 at the Restraining Order Hearing?
Finding that Section 3044(f) is ambiguous on the issue of the timing of the mandate on the court to inform the parties of existence of Section 3044, the Sabbah court turned to the history of Section 3044(f) and the legislative intent in its enaction.
When Section 3044(f) was discussed by The Senate Judicial Committee on April 21, 2003, the Committee made the following remarks about its purpose: “[C]ustody mediators generally do not tell their clients about the statutory presumption against custody for perpetrators of domestic violence. Since mediation often involves encouraging divorcing parents to agree to joint parenting, the author asserts that ‘many battered victims and their children are not benefiting from the policy behind [the law].’ [¶] Accordingly, this bill would require the court, in any custody or restraining order proceeding in which one parent has alleged that the other has committed domestic violence, to inform the parties about the rebuttable presumption against granting custody to perpetrators of domestic violence, and to provide them with a copy of the applicable statutes before any custody mediation occurs.” (Sen. Com. on Judiciary, Analysis of Sen. Bill No. 265 (2003–2004 Reg. Sess.) as amended April 21, 2003, pp. 6–7.)
Accordingly, the court made the following finding:
[S]ection 3044(f) requires a court in ‘any custody or restraining order proceeding’ involving domestic violence accusations to provide the statutory notice to the parties before they enter into custody mediation. (Sabbah v. Sabbah (2007) 151 Cal.App.4th 818, 825.)
It logically follows that under the California Family Code, the court is NOT required to provide statutory notice of the 3044 presumption to the parties at the time of the hearing on the restraining order, such notice is only required prior to child custody mediation.
So what does the Sabbah case mean for a respondent in a California domestic violence restraining order case thinking about stipulating to the requested orders? Do not agree to have a restraining order placed against you, there are very serious ramifications and no one is required to tell you about them.
California’s domestic violence laws are complex, but they play an integral role in custody matters. Whether you are the victim of domestic violence, or you have been falsely accused of it, you need a law firm that understands the impact it will have in your case. To talk to a child custody lawyer, call Talkov Law at (844) 4-TALKOV (825568) or contact us online for a free consultation about your case.
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