Domestic abuse, a grave issue with profound repercussions for relationships, families, children, and individuals, holds significant weight in divorce cases in Minnesota. It plays a crucial role in shaping the final outcome of custody in divorce proceedings.
For those seeking to dissolve an abusive marriage, comprehending the implications of domestic abuse is essential. This understanding is vital for prioritizing safety, both for themselves and any affected children throughout the process but also in the years to come.
What is Domestic Abuse?
Domestic abuse is defined by the Domestic Abuse Act and defines domestic abuse as:
- physical harm, bodily injury, or assault;
- the infliction of fear of imminent physical harm, bodily injury, or assault; or
- in certain situations can include threats, criminal sexual conduct, sexual extortion, or interference with an emergency call.
Keep in mind, domestic abuse is not always limited to physical abuse, but can include non-violent actions or even words.
These actions must be committed against a “family or household member” by a “family or household member.” A “family or household member” is defined as:
- spouses and former spouses;
- parents and children;
- persons related by blood;
- persons who are presently residing together or who have resided together in the past;
- persons who have a child in common regardless of whether they have been married or have lived together at any time;
- a man and woman if the woman is pregnant and the man is alleged to be the father, regardless of whether they have been married or have lived together at any time; and
- persons involved in a significant romantic or sexual relationship.
Minnesota’s Domestic Abuse Act
Victims have the right to petition for an order for protection (“OFP”). An OFP is a form of a restrain orders.
Due to damaging societal stigmas and various challenges, obtaining a domestic abuse restraining order can be both physically and emotionally draining, particularly for those already dealing with the stress of divorce. Consulting with a reliable family lawyer is advisable, as they can assist you in navigating the legal process as safely and effectively as possible.
Orders for Protection
Under Minnesota’s Domestic Abuse Act, victims of domestic abuse have the right to seek protective orders against their abusers. These orders offer certain protections to protected parties, such as prohibiting communications, barring an abuser from coming within a certain distance of the protected person or their home and place of work, temporary child custody or support, and many other forms of relief.
In Order for Protection cases, judges review the ex parte Petition. If a judge declines to issue a protective order, the alleged abuser is not notified of the petition. If it is determined protection is needed, a judge will issue an ex parte order for protection. If the alleged abuser decides to challenge the ex parte order, a hearing must be held within 14 days of the ex parte order. In some cases an alleged abuser will not request a hearing or challenge the ex parte order. In such circumstances, the court can grant a protective order for up to two years. If the alleged abuser challenges the protective order, then a hearing will be scheduled to consider the evidence.
Securing a restraining order can be challenging when physical signs of abuse are absent, as this makes it harder to demonstrate that abuse took place. Many abusers are skilled at hiding their actions and may use mental or emotional abuse to exert control, which can be difficult for others to detect and identify.
To establish domestic abuse in a divorce, it is essential to support your claims with as much pertinent evidence as possible, including:
- Police reports
- Medical records
- Photographs of injury or property damage
- Video or audio footage of violence or other altercations
It’s crucial for victims of domestic abuse to be aware of their rights and seek assistance from a skilled divorce attorney who can navigate them through the process and ensure their safety during this challenging period.
Domestic Abuse and Child Custody
Child custody often becomes a significant issue during divorce, particularly in cases involving domestic abuse.
This is because Minnesota courts are legally required to act in the best interest of the child, which will include considering whether domestic abuse, as defined by Domestic Abuse Act, occurred in the parents’ or either parent’s household or relationship. If domestic abuse has occurred, the court must then consider the nature and context of the domestic abuse and the implications of the domestic abuse for parenting and for the child’s safety, well-being, and developmental needs.
Under Minnesota law, the courts are obligated to apply a rebuttable presumption that joint legal custody is in the best interests of the child. However, if domestic abuse has occurred between the parents, the rebuttable presumption does not apply. Instead, the court is legally required to apply a different rebuttable presumption that joint legal custody or joint physical custody is not in the best interests of the child.
Therefore, a finding of domestic abuse in any custody dispute or divorce will have profound implication as to the court’s presumptions of the child’s best interest. Typically, a parent found to have committed domestic abuse will face challenges in securing sole or joint custody. Families can be confident that the judge will carefully evaluate all relevant factors to ultimately determine the custody arrangement that best serves the child’s best interests going forward.
Remarkable Legal Advocacy for Minnesota Families
At Lommen Abdo, our dedicated attorneys have earned the reputation as a trusted resource for all legal needs. With extensive experience in handling various family issues – from child custody and support to divorce – our skilled team is committed to guiding you through every step of the process. We offer expert counsel and work tirelessly to achieve a favorable outcome in court.
Navigating divorce can be challenging on your own. Choose a firm that prioritizes your family’s well-being. Contact us at 612.339.8131 to arrange a free consultation.