Restraining Orders, Protective Orders and Injunctive Relief

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Restraining Orders, Protective Orders and Injunctive Relief

Restraining orders, protective orders and injunctive relief can be an important component of child custody cases in situations where abuse and neglect is alleged. In some instances, obtaining this kind of relief in certain states can be problematic when there is an existing custody order that is in place. In many of these instances, a parties’ best option might be to file a motion to modify and/or make a hotline call.

Regardless, below is a description of restraining orders, protective orders and injunctive relief:

1. Restraining orders: A temporary court order issued to prohibit an individual from carrying out a particular action, especially approaching or contacting a specified person. Restraining orders (or “orders of protection” or “protection orders” as they are called in some states) are most often used to protect an adult from abuse, threats of abuse, harassment or stalking.

2. Protective orders: As referenced above, a protection order is a court order instructing a person to desist from abusing or harassing the petitioner for a fixed period. Some states issue protective orders in an emergency situation without having a hearing. “The exercise of parens patriae jurisdiction should be limited to those cases where there is substantial evidence of a grave emergency affecting the immediate welfare of the child… Generally, judicial relief in such cases should not extend beyond the issuance of temporary protective orders pending the application to the court of the rendering state for appropriate modification of the custody decree.”[1]

3. Injunctive Relief: Injunctive Relief is often only granted in emergency cases to prevent an injury while the child custody case is ongoing. It involves the discretionary power of the court in which the court, upon deciding that the plaintiff’s rights are being violated, balances the irreparability of injuries and inadequacy of damages if an injunction were not granted against the damages that granting an injunction would cause. In a child custody case, the court may grant injunctive relief against a parent who has refused to comply with a child custody order or some other aspect of a parenting plan. It can also be used as a tool to prevent one parent from alienating the other or taking a child away from one parent permanently.

Some examples of current case law around the country includes:

In re Marriage of Slomka & Lenehan-Slomka: Husband was not entitled to injunctive relief to enjoin wife from taking children to psychologist for therapy.[2]

In Re Marriage of DeRoque: Child’s maternal grandparents, who moved to strike allegedly false and defamatory documents filed by father in response to mother’s motion for modification of child custody and visitation, could not obtain injunctive relief against father, where they did not specifically ask court to grant such remedy, and nothing suggested that father planned a recurrence.[3]

State ex rel. Dep’t of Soc. Servs., Office of Family Support ex rel. Chesser v. Brunette: Putative father, who was adjudicated by default judgment to be father of minor child and who was ordered to pay child support, failed to show that he would suffer irreparable injury in the absence of injunctive relief, and thus he was not entitled to preliminary injunction prohibiting states from collecting child support and defaming him by suggesting he was the child’s father.[4]

[1] Christopher Blakesley, Child Custody – Jurisdiction and Procedure, 35 Emory L.J. 291, 370 (1986).

[2] In re Marriage of Slomka & Lenehan-Slomka, 397 Ill. App. 3d 137 (Ill. App. Ct. 2009).

[3] In Re Marriage of DeRoque, 74 Cal. App. 4th 1090 (Cal. Ct. App. 1999).

[4] State ex rel. Dep’t of Soc. Servs., Office of Family Support ex rel. Chesser v. Brunette, 876 So. 2d 244 (La. Ct. App. 2004).


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