QUESTION: Will a restraining order prevent me from having joint custody of the kids?
Unfortunately, one parent will frequently misuse a restraining order (DVPO) in North Carolina to prevent the other parent from having access to the child, whether or not domestic violence actually occurred. The parent seeking to abuse the system may take a chance that the judge will believe her version of the story and not require documentation other than her word. That is why it is imperative to seek an attorney as soon as possible, so that the attorney can defend you against allegations of domestic violence since it may impact custody.
Each jurisdiction in North Carolina may be different depending on local rules and customs and also the attitudes of individual judges. In many counties where I have practiced, the judge may enter a domestic violence protective order ex parte on a temporary basis granting custody to the party alleging abuse. However, many judges are reluctant to enter a 1 year restraining order denying the alleged abuser access to the children, especially if the accused parent alleges mother is abusing the process.
In order for a judge to use a domestic violence protective order to restrict one parent’s access to the children, the accusing parent must show that the alleged abuse was in the presence of or negatively impacted the children. Even in cases where abuse may have happened, the parent may not succeed in restricting the other parent’s access if the effect on the children can not be proven.
Also, it is important to note that the legislature limited the custody provisions in a DVPO to temporary for one year, and these provisions cannot be renewed even if the protective order itself is extended. Even if you have a protective order limiting your access to your children, many judges will increase your access to the children if you file a custody action even before the one year expires, but you will likely need an attorney to prevail because your burden has increased if a protective order has already been entered against you.