Don't Use a Restraining Order to Get Around a Custody Order That is Already in Place

Oct 19, 2017

This video is about a situation that I observed in court a couple of months ago while sitting in a courtroom waiting with my client for the judge to hear our restraining order.

As we were waiting we were watching all the other people who were going before us and one of the ladies who went before us was a woman who was trying to convince the judge to give her a restraining order to protect her children. She felt the father…the other parent was putting the children in danger by driving with the kids while under the influence of alcohol.

The first question that judge asked the woman was is there a current custody order in place that gives this other parent rights and her answer was yes so that was red flag. Number one the judge felt that by going to get a restraining order that maybe the woman was trying to go around or circumvent the prior order on custody and what the judge told her was that you need to seek to modify that prior family court order and you can do it on an emergency basis.

You don't need a restraining order to do that so that was the first reason he was inclined to deny her request for the restraining order the second reason was was because you know she was pleading with the judge and she was saying how and how much danger her children were and when the judge asked her we'll have you called the police her answer was no.

And when the judge asked her have you called CPS her answer was no. CPS is also known as Child Protective Services in Arizona. It's called the Department of Child Safety. This woman was saying that she was afraid for her children's safety yet she has not done the most basic of things which is call the police call or call CPS. So the judge had reason to question her credibility on that. I gave you this story because I want to make a couple of points.

The first point is is if you really feel like your kids are in danger and they're going to suffer imminent harm for God's sake call the police immediately. Call DCFS immediately. You don't have to wait to go to court to do that. In fact sometimes clients want a phone number for me where they can reach me at around the weekends and the fact is that's when the courts are closed.

If anything's going to happen, then the only people that can do anything about it are the police or DCs or a doctor at the emergency room if somebody has really been injured. So that's point number one. Do what you need to do to protect the children and it doesn't necessarily need to involve the court system. The second thing is don't use restraining orders as a tool to get around an existing custody order in your case. Sometimes people are successful in getting restraining orders. You don't have judges who are as nitpicky as this particular judge was. But sometimes the fact a judge gave you a restraining order could come back to bite you because the judge in the family court case or the judge who is looking at the custody orders again could find that you use that restraining order as a tool or as a way to get around the custody order. So just always be on the up-and-up and do what you need to do to protect your kids. Make sure you're asking for the right things in front of the right judges and always act in good faith.


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