Restraining orders, sometimes called protective orders, are court orders designed to protect individuals from acts of violence and abuse.
Restraining orders can provide protection from actions that include (but aren’t limited to):
- Harassment
- Stalking
- Assault
- Sexual assault
- Sexual abuse
- Emotional, psychological, and mental abuse
- Verbal and physical threats
- Kidnapping
Restraining orders are always serious legal matters, and the safety and well-being of the families involved are of utmost importance, but restraining orders can have both short-term and long-term impacts on a child custody case.
Whether you are seeking a restraining order, have had one entered on your behalf, or have been accused or found guilty of domestic violence, it’s critical for parents who are navigating child custody issues to understand how these court orders can affect their rights and responsibilities.
Understanding the different types of restraining orders
New Jersey has several types of restraining orders available to victims of domestic violence, stalking, or harassment. These orders can be either temporary or final.
- A temporary restraining order (TRO) provides immediate court-ordered protections that limit contact between the petitioner and the harasser. A TRO typically lasts for about ten days, after which there will be a hearing that determines whether the TRO should be dropped or should be final.
- A final restraining order (FRO) is a long-term, often permanent order mandating that the defendant stay away from and avoid contact with the petitioner. A FRO hearing requires evidence and may require witness testimony, cross-examination, and additional inquiry. If a FRO is issued, it’s also possible that the defendant will be fingerprinted for the police database and be prohibited from owning a firearm.
There are also subsets of temporary or final restraining orders that apply in certain circumstances. For example, a domestic violence restraining order (DVRO) is a court order designed specifically to protect victims of domestic violence and child abuse by current or former members of their household.
How a restraining order affects child custody
Both temporary and final restraining orders may affect a child custody or parenting time agreement in significant ways. As a result, it’s critical for petitioners and defendants alike to engage an experienced family law attorney to navigate the restraining order process to ensure that any changes to custody orders are in the best interests of the child or children.
Temporary restraining order
A TRO is temporary in nature but it can have significant impacts on custody matters. While in effect, it can supersede existing:
- Physical custody agreements
- Joint custody agreements
- Informal status quo arrangement
- Any other custody or parenting time arrangements
A TRO may include revisions to parenting time and custody arrangements—or it may suspend them altogether. It can restrict any communication that is not “calm or peaceful,” but it can also be used to eliminate all contact between all parties until the FRO hearing takes place.
If the TRO is the first experience between two parents in a courthouse, it can actually establish the first formal custody and parenting time order. Unless another action (divorce or non-dissolution matter) follows and the custody and parenting time issues are “moved” into that docket formally, all future custody and parenting time issues must be handled under the restraining order docket.
This can be very confusing, especially if restraining orders get dismissed or vacated. Working with a family law attorney who is experienced in navigating the impacts of restraining orders on child custody matters helps you understand the processes involved and potential outcomes.
Final restraining order
After your hearing, the court can either vacate the TRO or issue a final restraining order. A FRO might make some or all of the terms of the TRO permanent, but it can also increase the limitations and consequences for the defendant.
As such, having a FRO entered against you, especially with restrictive terms, may have a long-term effect on custody and parenting time agreements. Decisions relating to custody and parenting time, the minor child, or even the entry of the FRO itself can impact terms in your final divorce decree, so if you feel the decision was unjust, it’s vital that you discuss with your attorney whether to appeal the decision immediately.
Additional considerations for navigating restraining orders and child custody
Restraining orders, whether temporary or final, can be complex and there are numerous impacts to consider. To safeguard your rights as a parent, it’s important to work closely with an experienced family law attorney to understand how statutes and case law might apply to your situation.
Parenting time and restraining orders
Depending on the facts of the situation, parenting time may be restricted while a TRO is in effect. If a restraining order becomes finalized, there may be numerous impacts on child custody. The decision will depend on the facts of the situation including the nature of the domestic violence, potential future threat to the child, whether the child was present for the act or acts, whether or not the child is a protected party under the restraints, and much more.
The courts may order the parent to seek counseling or attend parenting courses. A parent with a Final Restraining Order entered against them may also be required to be evaluated by a mental health professional. The terms of the RO may also restrict, reduce, or revoke custody and/or parenting time.
Note that any temporary changes to parenting time as a result of a restraining order will not change any child support orders in place. If any changes in parenting time become permanent, this may impact support and you should discuss this with an experienced family law attorney.
Children and restraining orders
Protecting the well-being of a child is of the utmost importance. However, you can typically only apply for a restraining order if you are 18 years old or an emancipated minor, and subject to domestic violence by a spouse, former spouse, or a present or former household member.
That being said, children may be protected under a restraining order’s terms as a protected party, especially if they witnessed domestic violence or were abused as part of the act. Restrictions on custody and parenting time may be implemented as a protective measure under the order.
Regaining custody or parenting time after a FRO
If you’ve had your child custody impacted by a FRO, know that it is possible to revisit custody and parenting time. While FROs typically do not expire, they can be vacated, or the terms relating to custody and parenting time may be lifted or modified. To do this, however, will require another court hearing where a judge will evaluate whether the restraining order is still needed or whether there is reason to modify the provisions relating to custody and parenting time.
Consult with the New Jersey family law attorneys at Jacobs Berger
At Jacobs Berger, we understand the complexities involved in reaching custody and parenting time agreements when restraining orders are involved. No matter which side of the order you’re on, we can help you protect your parental rights and safeguard your children.
Make an appointment to coordinate your strategy session with our team.
