How to Protect Custody of Your Kids at a Restraining Order Hearing

By Veronica T. Barton, California domestic violence defense attorney and creator of DEFEAT the DVRO. Last updated October 29, 2026.

The short answer

Losing the restraining order hearing does not automatically mean losing your kids. In California the default is 50/50 joint custody, or close to it. If the judge finds that domestic violence occurred, there is a rebuttable presumption that custody with that parent is not in the children’s best interest, and rebuttable means you can refute it. So prepare for custody separately from the abuse allegations: bring proof that you are an involved parent, and if the judge seems inclined to grant the order, ask to be heard on the children’s best interests.

If your ex served you with a restraining order and you have kids, this is for you. The temporary order probably lists your children’s names and ages and says you cannot see them until the hearing. A lot of people read that and assume they have to win the entire hearing or lose their kids for up to five years. That is not how it works.

Why people think restraining orders are a custody shortcut

I once overheard a conversation in a family law clerk’s office in downtown Los Angeles. One woman was complaining that her ex did not pay enough child support. The other told her to go file a restraining order, because if she won it she would get close to full custody and he would have to pay more. That is how some people think about these hearings, and it is the reason you have to be prepared on custody, not just on the allegations.

The rebuttable presumption

With no restraining order, the default in California is 50/50 custody or close to it, and it is hard for one parent to get much more than that. The big exception is a domestic violence restraining order. If the court finds that domestic violence occurred, there is a rebuttable presumption that it is not in the children’s best interest to be with the parent who was found to be abusive.

The key word is rebuttable. It is legalese, but it means you can rebut it. You can refute it. You can show your side to get rid of that presumption. The big mistake people make is showing up prepared to prove they were not abusive and not prepared to address custody at all. If they lose on the restraining order, and I hope that does not happen to you, they have nothing ready for the second question. You still get the chance to show the judge that even with an order in place, you are a good parent, the kids need you, and it is in their best interest to keep something close to 50/50.

What the judge looks at

When the judge decides what is in the children’s best interest, they look at:

• the child’s age, health and emotional well-being
• the relationship with each parent
• the school schedule and extracurricular schedule
• each parent’s ability to provide for the children’s basic needs
• the living arrangement, including things like whether the child has their own bedroom at one house but not the other

Address as many of those as are relevant to you. How do you make the kids’ lives better? How are you a good parent? Bring proof. If you have witnesses who have seen you parent, bring them. If you are involved at school and the teachers will write a letter about it, bring that. Bring pictures of you with the kids on outings. If you take them to their medical appointments, be ready to say so.

Your custody evidence is separate from your evidence on the allegations, so organize it separately. How to show your evidence to the judge covers the mechanics, and Lesson 6.2 of DEFEAT the DVRO covers exactly what to say about custody.

How to bring it up at the hearing

The judge might handle this one of two ways. Some judges want to hear all the evidence about whether abuse occurred first and only deal with custody if the order is granted, because if there is no order there is no reason to hear about custody. Other judges take it all at once. You may not know which kind of judge you have, and the judge may not say anything about whether you are supposed to bring custody up. So ask.

At the hearing, the petitioner presents first. Then you present. At that point, say this: “If this court is inclined to issue a restraining order, I would ask to be heard regarding the best interests of our children.” Then wait and see what the court says.

What you have just done is tell the judge that if they are leaning toward granting the order, you want to present everything you have on why the children should still be with you. If the judge says no, that is a good sign, because the judge will have to give you that opportunity before making a custody order against you. If the judge says yes, that is your moment to present the photos, the letters, the appointments, all of it.

If the worst happens

Say you lose the restraining order hearing, and the judge also finds it is not in the children’s best interest to be in your custody. The restraining order will last somewhere between one and five years. That does not mean the custody order lasts that long.

Listen carefully to what the judge says. Judges often give clues about what they want to see before they will change custody. If the problem was the living situation, change it. If getting the kids to school and activities from where you live is a long drive, fix that. If the judge gives no clues but found domestic violence, take domestic violence classes or go to counseling, and consider parenting classes. Once you have at least three months of weekly attendance, you can go back to court, file a request for order, and tell the judge there has been a change of circumstances because you have addressed everything the court was concerned about. There will be a hearing. Do not give up.

Frequently asked questions

If I lose the restraining order hearing, do I lose custody of my kids?

Not automatically. A domestic violence finding creates a rebuttable presumption against custody for that parent, and you can rebut it by showing the judge you are an involved parent and that the children’s best interests are served by keeping time with you.

What should I bring to the hearing about my kids?

Witnesses who have seen you parent, letters from teachers, photos of outings, and anything showing you handle school, activities and medical appointments. Three copies of each document.

What do I say to the judge about custody?

After the petitioner presents and it is your turn, say: “If this court is inclined to issue a restraining order, I would ask to be heard regarding the best interests of our children.”

Can a custody order made at the hearing be changed later?

Yes. Address what the judge was concerned about, and after a few months of classes or counseling, file a request for order based on a change of circumstances.

Is this legal advice?

No. This post is educational. Reading it does not create an attorney-client relationship.