Domestic Violence, Divorce and Parenting Time

October was Domestic Violence Awareness Month. Under Minn. Stat. 518B.01 Domestic Abuse Act, domestic abuse “means the following, if committed against a family or household member by a family or household member:
(1) Physical harm, bodily injury, or assault;
(2) The infliction of fear of imminent physical harm, bodily injury, or assault; or
(3) Terroristic threats, within the meaning of section 609.713 subd. 1; criminal sexual conduct, within the meaning of section 609.342, 609.343, 609.344, 609.345, or 609.3451; or interference with an emergency call within the meaning of section 609.78 subd. 2.

Domestic Violence
The National Coalition Against Domestic Violence’s definition of domestic violence covers much more than the Minnesota Statute. The NCADV defines Domestic Violence as “the willful intimidation, physical assault, battery, sexual assault, and/or other abusive behavior as part of a systematic pattern of power and control perpetrated by one intimate partner against another. It includes physical violence, sexual violence, threats, and emotional abuse.”
Victims of domestic violence may find relief through the judicial system by the means of an order for protection, a harassment restraining order; and a domestic abuse no contact order.

Order for Protection
An order for protection (OFP) is a protection order issued out of family get an OFP, the petitioner needs to prove two things by a preponderance of evidence: (1) that the respondent committed “domestic abuse” against the petitioner, and (2) that there is a “family or household” relationship. A party may get an OFP before, during or after a divorce involving the abuser. An OFP provides relief like no contact, establishing temporary custody, parenting time, or child support, and exclusion from house/work/daycare. In Oberg v. Bradley, 868 N.W.2d 62 (Minn. Ct. App. 2015) the court admitted out-of-court statements by the child didn’t violate the father’s due process rights. these statements were properly admitted and the court decided based upon the preponderance of evidence that the issuance of an OFP was not an abuse of discretion by the lower court.

A harassment restraining order (HRO) is a protective order issued out of civil court. To obtain a HRO the petitioner must show that the other party harassed them by a preponderance of the evidence. Unlike an OFP, a HRO
A domestic abuse no contact order (DANCO) is a specific type of criminal no contact order that can be issued in any criminal proceeding against a defendant in which pretrial release or sentencing issue. State v. Ness, 834 N.W.2d 177 (Minn. 2013).

Domestic Abuse and Mediation
A court cannot require any party who claims to be a victim of domestic abuse or who the court determines that this is “probable cause that one of the parties or a child of the parties has been physically abused or threatened with physical abuse by the other party” to participate in any form of alternative dispute resolution procedure in any proceeding governed by the Minnesota General Rules of Practice 114.04(a) and 310.01(b). However, if a party claiming to be a victim of domestic abuse has been properly advised by counsel and has agreed to a form of alternative dispute resolution that doesn’t require face-to-face meeting of the parties, the court may then direct that an alternative dispute resolution process may be used.
In the end, the decision to engage in mediation or any alternative dispute resolution process when a client is a victim of domestic abuse depends on the situation.

Domestic Abuse, Custody, and Parenting Time
Under the Minnesota statute for parenting time, domestic abuse affects the best interests of a child. The court must consider more than if domestic abuse occurred, they must also look at the nature and context of the abuse and if the abuse has implications on the safety, well-being, and developmental needs of the child. Minn. Stat. § 518.17 (a)(4). When there is domestic abuse, there is a rebuttable presumption against joint legal and physical custody because it is believed not to be in the best interests of the child. Minn. Stat. § 518.17 (b)(9).

If you have Divorce and Family Law questions, please contact the Family Law experts at Minneapolis based Lake Harriet Law Office at 612-750-4843.

Published On: November 9, 2017Categories: Family Law Updates

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