In the United States, domestic violence is a common problem. According to the Centers for Disease Control and Prevention, 1 in 4 women and 1 in 7 men have experienced physical violence from an intimate partner.

Children are unfortunately caught in the crossfires of domestic violence. Children who are exposed to domestic violence in the home will suffer emotional harm and adverse effects as they grow. Children who witness domestic abuse are more susceptible to mental health problems such as:

Post-traumatic Stress Disorder

aggressive behavior;

anxiety;

impaired development;

It isn’t easy to interact with others;

Academic problems

Substance abuse is a severe problem.

Children exposed to domestic violence become violent themselves, which is a grave concern.

The courts and legislators play an important role in combating domestic violence. They do this by providing and granting legal relief to domestic violence victims. As an adjunct to a protection or restraining order, one of these legal remedies is temporary custody of children.

What is Child Custody?

Child custody can be understood in two ways: physical and legal.

The physical custody of a minor is a form of parental right that allows the child to live with their parent or guardian. Legal custody refers to the parent’s right to decide certain aspects of the child’s life (i.e., medical care, education, etc.)

What is the impact of a restraining order on child custody?

A restraining order is a short-term court order that prohibits specific actions until the full hearing can take place. A restraining or restraining order is often part of a criminal or civil case. In child custody cases, restraining orders that grant or remove custody are more common in domestic violence cases.

In domestic violence cases, state courts usually issue restraining orders to force one partner or spouse to stop hurting the other. Restraining orders are also known as protection orders, injunctions, orders of protection, and other names.

Civil protection orders allow victims of domestic violence to seek legal measures to stop contact with their partner or spouse. They include no-contact or stay-away orders; property rights, access, and vacate orders; and orders for child maintenance, monetary support, and relief, including medical bills, counseling, and treatment for defendants.

In domestic violence cases, temporary custody is the most common form of relief in custody matters. Temporary custody is usually granted to a parent who has been the victim of domestic abuse by their partner or spouse.

Temporary custody does not mean permanent custody. Permanent custody can be an issue when other civil proceedings are being conducted, such as divorces, paternity determinations, filiation, and other cases involving the well-being and care of children. In such cases, the courts typically adhere to state laws on child custody. State laws governing permanent custody use the “best interests of the child” as a common feature. The courts define this principle as a standard to decide what services, actions, and orders are best for a child and who will be best suited to care for a child.

In domestic violence cases, the courts also follow the “best interests of the child” principle when granting temporary custody of children before issuing a restraining or protection order. However, it’s the priority to provide victims with timely and effective help.

The Office on Violence Against Women of the US Department of Justice has published “16 Guiding Principles to Address Effectively Child Custody in Cases of Domestic Violence”. The guiding principles, which are relevant to domestic violence child custody cases, state that courts, when making decisions and/or issuing orders about child custody, should:

Making decisions or issuing orders about child custody and parenting times that address domestic violence effectively by taking into account the nature of the abuse, the context, and the implications for parents and children;

Access to the court for temporary relief of child custody orders and parenting time and enforcement of those orders.

Impact of Restraining Orders on Custody under Different State Laws

A survey of state laws by the American Bar Association Commission on Domestic & Sexual Violence showed that the majority of states had already passed legislation that not only defined and punished “domestic abuse” but also provided relief in the form of temporary custody and visitation of children as an ancillary measure to the granting of a restraining order or protection order.

According to Nevada law, a victim of domestic abuse by a violent spouse or partner can apply for ‘temporary protection against domestic violence’ and receive temporary custody of their child.

Alabama law not only awards temporary custody in similar circumstances but also prevents the alleged perpetrator from taking any child away from their other parent or anyone with legal custody of the children.

California law allows courts to award temporary custody as part of a Domestic Violence Restraining Order. This is typically a precursor of a DVRO, but it lasts much shorter than a DVRO.

In the District of Columbia, a civil protective order that grants temporary child custody to a spouse or parent may also regulate the custody arrangements and the visitation rights of an alleged abuser. The suspected abuser must prove that their visitation won’t endanger or harm the child emotionally.