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RobertJDFL
RobertJDFL, Lawyer
Category: Family Law
Satisfied Customers: 13861
Experience:  Experienced in multiple areas of the law.
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I currently have a California restraining order and my kids

Customer Question

I currently have a California restraining order for me and my kids against my ex for 5 years. It is was granted in April. The court instructed my ex to take a batterer's intervention course before he could file for custody. Since the judgement has emailed and texted insults to me disguised as emails to our girls. He recently sued me for joint legal and physical custody stating that he doesn't need the course and I filed out of spite over the relationship ending. What are the odds of him winning and what do I need to prepare?
Submitted: 2 years ago.
Category: Family Law
Expert:  RobertJDFL replied 2 years ago.

Thank you for using Just Answer. I look forward to assisting you this evening.

I think the chances of him winning joint custody are quite low.

Judges evaluating custody cases in California must consider the best interests of the children in reaching a conclusion about how parents will share time with the children. Both parents begin with equal rights to custody; a judge is not permitted to give a preference to either parent based upon the parent’s sex. In determining a child’s best interests, California law specifies two guiding policies:

  • the health, safety, and welfare of children must be a court’s primary concern, and
  • children benefit from frequent and continuing contact with both parents.

Within the parameters of these two policies, a judge may consider any factor relevant to parenting, taking into account all the circumstances of each individual case. Factors can include the continuity and stability of the child's home, a child's preference (in older children), the ability of the parents to co-parent successfully, etc.

Also, I don't know if this restraining order comes out of a domestic violence situation or not. A parent with a history of domestic violence or child abuse is going to face an uphill battle in seeking joint legal and joint physical custody. That is because California family law states that, a parent who has been found to have committed domestic violence must overcome a presumption that it is not in the children’s best interest for him or her to share joint custody.

I think you're in a good position already because of the restraining order, a copy of which you want with you in court. I'd have copies of the emails with the threats, too. Obviously if a court felt it necessary to restrain him for 5 years, a family law judge is going to be cautious about how much contact your children have with him. Furthermore, I'd point out that he has not completed the class as required. He may think it's unnecessary, but he doesn't get to make that decision, either. And a judge isn't going to allow him custody without having complied with court orders.

Basically, you have to show why the children are better off staying with you versus your ex. And while you aren't necessarily opposed to the children having a relationship with your ex/their father, his past history is a good indication that he's not capable of equal custody and decision making.

If you need further clarification or information, please REPLY and I'll be happy to assist you further. Thank you.

Expert:  RobertJDFL replied 2 years ago.

Thank you for using Just Answer. I look forward to assisting you this evening.

I think the chances of him winning joint custody are quite low.

Judges evaluating custody cases in California must consider the best interests of the children in reaching a conclusion about how parents will share time with the children. Both parents begin with equal rights to custody; a judge is not permitted to give a preference to either parent based upon the parent’s sex. In determining a child’s best interests, California law specifies two guiding policies:

  • the health, safety, and welfare of children must be a court’s primary concern, and
  • children benefit from frequent and continuing contact with both parents.

Within the parameters of these two policies, a judge may consider any factor relevant to parenting, taking into account all the circumstances of each individual case. Factors can include the continuity and stability of the child's home, a child's preference (in older children), the ability of the parents to co-parent successfully, etc.

Also, I don't know if this restraining order comes out of a domestic violence situation or not. A parent with a history of domestic violence or child abuse is going to face an uphill battle in seeking joint legal and joint physical custody. That is because California family law states that, a parent who has been found to have committed domestic violence must overcome a presumption that it is not in the children’s best interest for him or her to share joint custody.

I think you're in a good position already because of the restraining order, a copy of which you want with you in court. I'd have copies of the emails with the threats, too. Obviously if a court felt it necessary to restrain him for 5 years, a family law judge is going to be cautious about how much contact your children have with him. Furthermore, I'd point out that he has not completed the class as required. He may think it's unnecessary, but he doesn't get to make that decision, either. And a judge isn't going to allow him custody without having complied with court orders.

Basically, you have to show why the children are better off staying with you versus your ex. And while you aren't necessarily opposed to the children having a relationship with your ex/their father, his past history is a good indication that he's not capable of equal custody and decision making.

If you need further clarification or information, please REPLY and I'll be happy to assist you further. Thank you.