Divorce proceedings can involve children deciding which parent has primary custody and visitation rights. However, if a parent feels danger of an imminent threat or violence against oneself or their children, that parent can seek a restraining order to prevent the offending parent from approaching the parent or child.
If the parent applies for a restraining order after the divorce is completed and the custody arrangement is finalized, then the restraining order will trump the divorce proceeding. If, however, a restraining order is sought before divorce proceedings are finalized, it creates a rebuttable presumption that awarding custody or visitation to the offending parent is not in the best interest of the child.
Restraining orders are obtained by a person against another through evidence of a pattern of abuse or serious act of violence committed against them by the accused. Upon application and based on evidence, a judge can order the accused to stay away from the applicant. The accuser can seek to limit the accused from encountering their child, come within a certain distance of the child, child’s home, school, or daycare. The accuser can seek to have a police officer present during visitation by the accused parent. If the accused violates the order, the applicant can contact local law enforcement to enforce the restraining order.
The applicant of the restraining order often appears before a judge with their lawyer to present evidence of threat, violence, or imminent danger from the other party. Judges, after hearing evidence from both parties, can limit visitation and custody rights. They can also limit the accused from approaching the aggrieved party. Temporary restraining orders are of limited duration, usually 14 days, and are obtained on an emergency basis. The accused can file a motion to reverse the order by showing evidence to the judge that there was no violence or threat of danger.
Limitations on Custody Arrangements
If the order is sought after the custody arrangements have been made, the order will supersede. Therefore, if the accused parent in the divorce decree had the right to visit or had custody for certain days of the week, it will be modified to accommodate what is now in the order. If the order restricts all contact, then the accused parent loses custody or visitation rights that they once had. However, the accused parent can rebut this presumption by providing evidence of good behavior and lack of violence through witness testimony and other evidence.
Divorce proceedings can be highly charged, which are further complicated through restraining orders. If you are worried about your custody rights, contact our office at (856) 512-1461 or contact us online. With office locations in Marlton and Somers Point, New Jersey, we serve clients throughout South Jersey, Camden County, Burlington County, and Atlantic County.