[CA] Can a parent challenge a restraining order that includes a child as a protected party when it was not discussed in court?

CA Family Law

Legal Eagle

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Thank you so much for chatting with me on this. How I understand this is that you are dealing with two separate issues, and each one affects your custody rights differently.

You can still challenge the inclusion of the older child if the court never made factual findings about that child during the restraining order hearing. (CA Fam Code § 6320) Collateral estoppel only applies when an issue was actually litigated and decided, and you are saying this specific issue was never addressed.

You can request a modification or clarification of the restraining order so the court reviews whether that child should remain protected. (CA Fam Code § 6345) You can also focus on showing the court that your relationship with your daughter is stable and that you have taken responsibility for the message you sent. You should document positive parenting, counseling, and any steps that show improved communication habits. (CA Fam Code § 3011)

You can still argue for custody rights even with the restraining order in place. You will want to keep everything calm, factual, and directed through the court rather than direct contact while the order remains active.

Does that help clarify things? I want to make sure I didn’t leave anything out.

California Custody (Parenting) Plan

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I need to talk to a lawyer about my custody case.

Lexi, Chatbot

I understand that custody cases can be very stressful and emotional. Can you please share whether you are currently in the process of a custody dispute or if you are seeking to modify an existing arrangement?

Currently in a dispute.

Lexi, Chatbot

Are there any specific concerns or issues regarding custody that you would like to address with the lawyer?

Yes.

Lexi, Chatbot

Is there anything else the family lawyer should know before I connect you? Rest assured they'll be able to help with your custody dispute.

Yes.

Legal Eagle

Hello, I’m Legal Eagle. I’m an attorney who works in your area of law and I’ll help you sort this out today. I’ve read what you shared, so let’s go over what’s happening and what your best next steps look like. What specific issue in your custody dispute do you want the lawyer to address first?

I have maintained as the mother sole physical and sole legal custody of our seven-year-old daughter. Her father has now requested joint legal and joint physical custody during the custody case.

I sent a sexually explicit file to the father's current wife sharing sexually explicit context between me and our daughter's father while they were married. Now, the father and wife were granted a 3-year restraining order against me because I disturbed their peace. Father added his oldest child from his first marriage as part of the protected party.

However, I am best friends with this child's mother and she lives primarily in Austin with her mother and stepfather, and we are all a very close bonded family. I've requested to have that child removed as the protected party, but the father is filing collateral estoppel. During the hearing, the added child to the protection order was never addressed or talked about.

Legal Eagle

Thanks for sharing those details. It sounds like a complex situation. Could you let me know which state or region you're in? This will help me understand the legal context better.

Orange County, California.

Legal Eagle

Understood! So you're just wondering what it is you can do here, correct?

"Is the father's lawyer correct that this is collateral estoppel? How do I best protect my rights?"

Legal Eagle

Ok! I've been working on an answer while we've been chatting, so it'll just be a moment.

Legal Eagle

Thank you so much for chatting with me on this. How I understand this is that you are dealing with two separate issues, and each one affects your custody rights differently.

Does that help clarify things? I want to make sure I didn’t leave anything out.

My daughter is part of the protected party—it's her father's daughter from his first marriage—and we are best friends and I love their child. I have never posed any harm to her, and the father is unable to show that or prove that, so there is no reason why the child should have been added as the protected party.

Legal Eagle

I hear you!

Since the father hasn't shown any evidence of harm or threat, you might consider filing a motion to modify the restraining order. You can file a request to modify or clarify the restraining order and argue that the court never made findings about this child during the hearing.

You can point out that there is no evidence of harm, no contact issues, and no basis for including her as a protected party. You can also attach declarations from the child’s mother confirming the relationship and lack of risk.

Provide specific supporting cases that my situation does not fall under collateral estoppel.

Legal Eagle

Sure thing! Lucido v. Superior Court (1990) 51 Cal.3d 335 discusses the requirements for collateral estoppel, emphasizing that the issue must have been actually litigated and decided.

In Samara v. Matar, 5 Cal.5th 322, the court held that collateral estoppel requires a final decision on the precise issue, not an issue that was never addressed.

Can you provide another example please?

Legal Eagle

Sure thing! People v. Sims (1982) 32 Cal.3d 468, the California Supreme Court held that collateral estoppel applies only when the issue was actually litigated and necessarily decided in a prior proceeding.

This means if an issue wasn't directly addressed or decided in the previous case, collateral estoppel wouldn't apply.

Those are probably going to be your best cases on point, but if you want even more you can go to anylaw.com and search for cases on this to save yourself money instead of having a lawyer do it.

I know it’s a lot, but does that help make sense of things a bit more?

Legal Eagle

Hello! I want to make sure I fully answered all your questions and that you feel completely supported. If there's anything else I can clarify, I'm here for you!

Legal Eagle

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