Temporary orders were made granting the mother sole legal and sole physical custody based on her claims of domestic violence that she said occurred 6 years ago. The research I have done said they will grant the orders for sole when domestic violence has occurred in the last 5 years. No police reports were filed and there is no proof of the abuse ever happening. Is there anything I can do in meantime to get the temporary orders changed? It's incredibly disruptive to my child's schedule who is used to spending 3 days a week with me. I'm completely shocked that the orders were granted based on no evidence.
Unfortunately, the first opportunity you will likely have to challenge the Temporary Restraining Order (TRO) is at the scheduled hearing. The court routinely grants TROs if the requesting party makes a prima facie claim of domestic violence in a declaration, without really evaluating the truthfulness of the claims . But at the hearing on her request, the court will assess both parties' credibility based on testimony and other admissible evidence. It is important that you appear at the hearing (preferably with counsel) to challenge her claims or else the court may grant her restraining order request for up to 5 years.
Regarding custody, I believe you are referring to the Family Code § 3044 presumption against granting physical custody to a perpetrator of domestic violence (on the protected party/children) in the past 5 years. This only matters if the Court grants her restraining order request. But if she is truly seeking protection based on an incident from 6 years ago and during that time you have shared custody (3 days/week) without incident, it seems unlikely the court would have granted a TRO or would grant a DVRO at the hearing. That said, if recent actions or words have caused her to become fearful of a repeat of violence from 6 years ago, the court may look to her current fear and not the age of the incident in making its determination.
The information provided does not constitute legal advice. You should always consult an attorney to discuss the specifics of your situation before engaging in any legal action that may or may not be necessary and/or warranted.
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