San Diego Divorce Lawyer Blog
As a parent, one of the chief objectives most people seek to accomplish is to protect their children, particularly their minor children. This is especially true when the threat posed involves an element of sexual overtones. That was the scenario allegedly faced by one Los Angeles County dad, with regard to whom the Second Appellate District indicated that the law allowed the father to take action, not only in family court but also in civil court in the form of a restraining order.
According to the father’s court papers, his problems started before he and his wife divorced, when the mother entered into a relationship with another man. Allegedly, the new man in her life spent some of his time harassing the father, but things took a darker turn when the boyfriend put pictures on the family computer that showed the mother having sex with another man. One of the father’s daughters allegedly found the photos, and the mother’s boyfriend, some time later, attempted to offer that same daughter alcohol.
The father first took action by going to the family court. He sought and obtained a modification of the couple’s custody order. The modification said that the boyfriend was to have no access to the children, and, if a violation occurred, the father would receive sole physical custody for at least six months.
This did not stop the boyfriend, according to the father. Indeed, the boyfriend, even with this order in place, allegedly began texting the younger daughter, who was only 10 years old.
This time, when the father went back to court, he went to civil court seeking a restraining order. After a hearing, the judge declined to enter the order. The proper recourse for the father, according to the court, was to return to family court and seek a further modification of the custody order or an order finding the mother in contempt, rather than a restraining order.
The father appealed and won. The appeals court pointed out that not only did the father have a right to ask for the restraining order he sought, but also he was, as a parent, “required by law to protect their children from people who might exert a negative influence over them.” Back in 2005, the appellate court ruled that “parents have broad authority over their minor children, including deciding who may spend time with a minor child.”
In this case, the father sought a restraining order on the basis of harassment. The evidence and arguments he had – that the boyfriend had placed on the family computer (used by the underage daughters) nude pictures of the mother having sex, offered the older girl alcohol, and texted the younger girl – were not disputed and were enough to meet California’s definition of illegal harassment, in that the boyfriend “engaged in a course of conduct serving no legitimate purpose, evidencing a continuity of purpose that would cause a reasonable person to suffer substantial emotional distress, and which actually caused substantial emotional distress to” the daughters.
In light of the law’s broad discretion given to parents in restricting who has access to their children, the father had the right to pursue the injunction he sought. Even though the father and mother had been involved with the family court, the father’s pursuit of the restraining order outside family court was allowable because the order he sought didn’t attempt to undermine what the family court had ordered, but instead it reinforced the most recent custody order entered by that court.
When you need to utilize the court system to protect your family, you need experienced counsel helping you navigate the system and pursue the outcome you prefer. The diligent San Diego child custody attorneys at Doppelt and Forney have been assisting clients throughout Southern California, including in San Diego, Encinitas, La Jolla, and Chula Vista, for many years in a wide variety of family law cases. For a free consultation, reach out to Doppelt and Forney, APLC through our website or call toll-free at (800) ROY IS IT (769-4748).
More blog posts:
Non-Parents and Parental Rights in California, San Diego Divorce Lawyer Blog, Aug. 9, 2016
California Court May Remove Child From Custody of Parent to “Avert Danger”, San Diego Divorce Lawyer Blog, April 15, 2014