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Abstract: 

Our case summaries this issue review important decisions from South Dakota, Louisiana, California, Nevada, and Arkansas involving conflicts between visitation and protection orders; grounds for modifying temporary domestic violence restraining orders; and custody rulings involving DV. In Nygaard v. Taylor, 78 F.4th 995 (8th Cir. 2023), a federal court was asked to rule on the applicability of the federal Parental Kidnapping Statute to Tribal court ruling in a case involving a mother who fled with her son from an abusive partner to Cheyenne River Indian Reservation in South Dakota without court approval and without notifying the father’s child. In a case heard by the Louisiana Court of Appeal, Alexander v. Victor, the court ruled that an inconsistency between visitation order and protective order required remand for clarification, as the protective order was filed on behalf of both mother and son, but only the mother had been deemed a protected person under the restraining order. In a custody case involving domestic violence, the victim typically will seek custody and custody modification orders as part of the initial request for the domestic violence restraining order (DVRO). A California appellate ruling, In re Marriage of Willis and Costa-Willis, illustrates why domestic violence victims and their attorneys should not assume that the presumption against custody to a perpetrator of domestic violence will automatically arise on a finding of domestic violence. Willis did not seek custody modification as part of her request for a restraining order or during a subsequent evidentiary hearing, and the Court of Appeal found the presumption did not apply. However, the Court of Appeal concluded its ruling by noting that its decision was “without prejudice to any party seeking a change in custody or visitation,” so Willis can still seek modification of custody, even though she lost her opportunity to do so at the time she requested the DVRO. In another California decision, Malinowski v. Martin, the Court of Appeals ruled that statutory procedures requiring changed circumstances to modify injunctions and temporary restraining orders not always necessary for modification of temporary domestic violence restraining orders. In our final case, an unpublished opinion from the Nevada Court of Appeals, Zirate v. Salazar, a mother’s request to relocate with youngest child was granted where the trial court heavily emphasized father’s domestic violence in reaching its ruling.

Keywords: Federal Parental Kidnapping Statute; Tribal Jurisdiction; Visitation and Protection Orders; Modifying Temporary Domestic Violence Restraining Orders; Custody Rulings Involving DV

Affiliations:  1: Contributing Editor; 2: Associate Editor.