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MY Ex Filed A Restraining Order Against Me and Now I am Not Able to See My Child. What Are the Steps I Need to Take to Get Visitation?

Posted by Michael H. Moreno | Jun 04, 2020 | 0 Comments

Custody cases can be the most heartbreaking and contentious, regardless of if the couple is married or not. If one parent files a restraining order it can complicate things even more.  Often times a child may even be included in the restraining order as a protected party. As a result, visitation with the child can be significantly impacted or completely taken away. However, despite a restraining order being in place, the restrained parent may still have the right to have meaningful visitation time with their child. 

At the Moreno Family Law Firm, we deal with this situation all the time.  Once the restraining order is granted and filed, the judge is required to set a hearing within 25 days.  That first court date is very important to your case and we strongly advise you to hire legal counsel for that first hearing.  Often, the restraining order hearing or trial is not ready to proceed at that first court date, so the judge will continue the hearing out, either for trial or for a status conference, approximately 1 month depending on the Judge's availability and schedule. 

You would be right to think to yourself “But if the judge continues the current orders in the restraining order, I won't be able to see my kids for another month!” Yes, this is why this first court date is so important. At that first court date, you should always ask the judge to make an exception to the restraining order to allow you to see your children between the date of the first hearing and the next date for the case that the judge has picked.  This exception for visitation to the initial restraining order is often called “interim visitation.” 

One of the most powerful tools for you to get interim visitation is to ask for an “Emergency Screening.”

An Emergency Screening is a hearing set on a very short turnaround (usually within a few days) where the Court orders the parties to talk to a court appointed therapist.  This screening will usually take a full day, from 8:00 a.m. in the morning to 5:00 p.m. at night.  The children will need to show up to court for part of the day to meet with the therapist.   The purpose of the screening is for the therapist to make recommendations about how much “interim visitation” each party should have with the children until the restraining order is resolved. 

The therapist will make a recommendation to the Court which will become a court order once approved by the judge. The recommendations often include recommendations on issues not related to visitation, like if either party requires behavioral therapy, alcohol or drug treatment classes, as well as the recommendation regarding how much visitation each party should have with the children on a temporary basis.  The attorneys are often given less than 30 minutes to review the recommendations with their clients.  If either party is not happy with the recommendations of the therapist, they can object and ask for a hearing.  This hearing would happen the same day at approximately 4:00 p.m. in front of the same judge that assigned the case for the Emergency Screening. 

This is why you need an experienced and competent litigator.  The attorney has often less than 30 minutes to review the recommendation and appear in court to contest or request its approval. 

During the hearing, the Court will ask to hear from the therapist about why she made the recommendations that she made, and who she contacted in order to make the recommendations.  Both attorneys have the right to cross examine the therapist questions about what she did or did not do that may call into question her recommendation.  Then, the objecting party will have the right to argue to the court why the judge should not follow a particular recommendation of the therapist.  However, it is very difficult to change the judge's mind once the recommendations are made by the therapist, partly because the judge knows that the therapist just spent all day with each party and the children, while the judge only had an hour to listen to the findings and arguments from the attorneys. 

The Moreno Family Law Firm has conducted literally thousands of Emergency Screenings in the past 30+ years that this firm has been in business.  An Emergency Screening has the potential to be a powerful tool for you to use to get interim visitation with your kids, as long as you present your case to the therapist in the most convincing way possible.  Contact us today to schedule an appointment!

About the Author

Michael H. Moreno

Michael Hector Moreno comes to the Moreno Family Law Firm as a bright young star emerging from the Santa Clara County District Attorney's office. Michael spent four years as a Deputy District Attorney where he built a glowing reputation in the criminal courthouse. Notably, Michael spent over a y...

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