Restraining orders are an important tool available to spouses who are being abused by their spouses. They can also be used to protect children from abuse at the hands of a parent. The issuance of restraining orders is not limited to family units that are intact: spouses who have been divorced for years may still seek and obtain restraining orders against the other spouse to protect themselves and/or their children. In the case where the applicant for a restraining order has been divorced from the alleged perpetrator of abuse for a significant period of time and a restraining order is sought on behalf of the parties’ child, complications and confusion can arise. How do orders entered pursuant to an application for a restraining order impact other orders entered by the court as part of the divorce?
Emergency Orders Trump Existing Parenting Time Orders
An application for a restraining order is first reviewed by a judge who may enter a temporary restraining order. These initial restraining orders are sometimes referred to as “emergency” or ex parte orders because a court may grant these orders without having the person against whom the order is sought appear in court and respond to the allegations. If a judge enters a temporary restraining order on behalf of your child and it is alleged that the other parent is the perpetrator of the abuse, the court’s order will likely contain restrictions on that parent’s visitation time (or it may temporarily eliminate that parent’s visitation time altogether). These orders trump any other existing visitation orders that may be in place.
For example, suppose a parent has visitation time with his or her child every other weekend pursuant to a court order entered several years ago. Suppose further that this parent is accused of physically abusing his or her child and a temporary, ex parte restraining order is issued against the parent. The temporary restraining order indicates that the accused parent (the defendant) is not to have any visitation time with the child until further order of the court. The order suspending visitation supersedes the previous custody order. If the defendant attempts to visit the child while the temporary custody order is in place, civil and/or criminal sanctions and penalties may be imposed.
Final Restraining Orders are Often Incorporated into the Family Law Case
Shortly after entering a temporary restraining order, the court will hold a hearing to determine if a final restraining order is appropriate. At this hearing, both parties have a right to be present, to be represented by legal counsel, and to present evidence and testimony. A court may enter a final restraining order that is of a more lasting duration if the person who filed for a restraining order proves the allegations contained in his or her application by a preponderance of the evidence (that is, proves that the allegations of abuse are more likely than not true). A court that enters a final restraining order on behalf of a child and against that child’s parent will likely create a new custody arrangement or enter new visitation orders. These orders are often incorporated and made part of any existing divorce or paternity case involving the parties and the child. If a final custody determination has not yet been made, an active restraining can be factored in to the court’s final decision.
When one parent is alleged of abusing his or her child, the safety and well-being of the child as well as the rights of the parents are in jeopardy. New Jersey domestic violence lawyer Peter J. Bronzino understands this and can help parents who find themselves in this difficult situation. If you are seeking a restraining order on behalf of your child against the other parent, Mr. Bronzino can assist you in completing the paperwork for a temporary restraining order and proving your case for a final restraining order. If you are the defendant in a restraining order action, Mr. Bronzino can provide you with the experienced and aggressive legal representation you need to protect your parental rights. Contact Bronzino Law Firm at (732) 812-3102 for prompt and knowledgeable assistance today.