Court Orders Regarding Child Custody, Child Support, or Visitation Survive the Termination of Any Protective Order

Dawn Moore’s family law attorney filed a request for a Domestic Violence Prevention Act (DVPA) against Maurice Bedard, the father of their three children. In the request, Moore’s family law attorney also requested the family law court to order child custody, visitation, and/or child support. Specifically, Moore requested that a prior child custody order be modified, in addition to requesting child support. A hearing on the request for a temporary restraining order (“TRO”) was held. The parties presented a stipulation to the family law court, which resolved child support and monetary issues between the parties. The family law court approved the stipulation and ordered it to be filed. At Moore’s request, the TROs were dissolved. Years later, Bedard filed a request for a hearing to modify the child support. A hearing was held on an order to show cause regarding modification of visitation and child support and a change of venue. In regard to the restraining order issue, the family law court noted that there were no pending restraining orders, and that the case had been dismissed. In regard to the child support issue, the family law court noted that entire action had been dismissed. The Department of Child Support Services (“Department”) then filed a motion to vacate the order dismissing the action. The motion recited that Bedard was claiming there was no valid support order because the entire action had been dismissed. At the hearing on the motion, the family law court found that it had lost jurisdiction over the matter because the family law court had not issued the requested restraining order. It therefore voided the stipulation and orders that had been filed. The family law court further found that, although the issue of child support was properly raised in the request for a restraining order, the family law court lost jurisdiction to make a child support order because it did not issue a restraining order. Accordingly, the family law court again dismissed the action over the objections of the Department. At the hearing, the family law court explained that, because there had never been a restraining order issued after hearing, the case had been dismissed by operation of law, and the family law court therefore had no jurisdiction to continue to make support orders.

The sole issue on appeal was whether the family law court continued to have jurisdiction to make child support orders even if the underlying restraining order had not been granted. Family Code section 200 states, “The superior court has jurisdiction in proceedings under this code.” Section 290 provides that an order made pursuant to the Family Code may be enforced “by any other order as the court in its discretion determines from time to time to be necessary.” Domestic violence restraining orders are issued pursuant to the Domestic Violence Prevention Act (“DVPA”). A “protective order” is defined in section 6218 as an order issued under sections 6320, 6321, and 6322. Section 6340 gives the family law court discretion to issue any of the orders stated in sections 6320, 6321, or 6322 after notice and hearing. It specifically provides, “If the court makes any order for custody, visitation or support, that order shall survive the termination of any protective order.”

The Court of Appeal agreed with Moore’s divorce attorney and concluded that the family law court erred in dismissing the action for lack of jurisdiction. The family law court had jurisdiction to make child support orders, and such jurisdiction survived the “dissolution” of the TRO. Specifically, the family law court had continuing jurisdiction to make child support orders even though the restraining order was not granted. Thus, the family law court’s order that dismissed the entire action for lack of jurisdiction was reversed.

Moore v. Bedard (2013) 213 Cal. App. 4th 1206