Domestic Abuse: The Impact on Your Divorce and Child Custody Cases

Domestic violence is a serious issue in divorce and custody cases, not only in terms of the civil and criminal effects, but also in the direct impact it will have on your chances for custody. To put it simply, a finding of domestic violence (order for protection in civil court or a criminal conviction of domestic violence) can ruin a party’s chance for custody.

1. Do not put yourself in a situation where it is likely an argument with your spouse will ensue. A finding of domestic abuse by one spouse against the other makes any custody battle very difficult since there is a presumption under Minnesota law that an abuser should not have custody. The specific language of the statute states: (d) whether domestic abuse, as defined in section 518B.01, has occurred between the parents. The court shall use a rebuttable presumption that upon request of either or both parties, joint legal custody is in the best interests of the child. However, the court shall use a rebuttable presumption that joint legal or physical custody is not in the best interests of the child if domestic abuse, as defined in section 518B.01, has occurred between the parents. (Go to Minn. Statute § 518.17 for the full text of the statute.) Copyright © 2007 by the Office of the Revisor of Statutes, State of Minnesota.  All rights reserved.
2. Do not yell, grab, hit, or throw anything in the presence of your spouse or, even more significantly, in the children's presence. If your spouse tries to incite you, walk away. Something as simple as blocking someone’s exit from a room may be considered abusive.
3. If you are being abused or are in fear for your safety or for the safety of your children, call 911 right away.
4. If you are accused of being physically abusive, do not make any statements - to anyone! Call an attorney right away. Remember, statements you make to the police (and to others) can be used against you in a later proceeding. Assert your right to remain silent.

In civil court, a finding of domestic abuse will result in the issuance of an Order for Protection. An Order for Protection is a civil order (not a criminal conviction) directing the abusing party (Respondent) to, among other things, stay away from the abused (Petitioner) party's residence or employment. When there are children involved, a temporary custody award will be made. An Order for Protection is usually put into effect for one (1) year, and may be extended beyond one year for good cause. Below are some excerpts from an actual order:

• NOTICE ABOUT ARREST AND JAIL: A violation of this Order may be a misdemeanor, gross misdemeanor, or felony. A misdemeanor violation may result in up to 90 days in jail, or $1,000.00 fine, or both. A repeat violation may be a gross misdemeanor, and may result in up to one year in jail, or $3,000.00 fine, or both. A police office must arrest and take into custody a person whom the officer believes has violated this Order.
• NOTICE ABOUT DEPORTATION AND ENFORCEMENT: A violation of this Order for Protection is a deportable offense. If you are not a United States citizen, a violation of this Order could result in your deportation. This Order for Protection is enforceable in all 50 states, the District of Columbia, tribal lands, and the United States territories. Violation of this Order for Protection may subject the Respondent to federal charges and punishment.
• NOTICE ABOUT FIREARMS: The Respondent must not possess, ship, transport, or receive any firearm or ammunition while this Order is in effect.
• NOTICE ABOUT OTHER CASES: Both parties are notified that in any other case involving parenting time (visitation), the Court will consider this Order for Protection if the Petitioner so requests.

If you and your spouse/partner are still living in the same house, be sure to discuss with your attorney early on any concerns you may have about your spouse's temper or abusive tendencies.  Do you believe your spouse is violent or could be violent?  Do you believe your spouse would lie about what happened during an argument?  Do you believe he or she would say you hit, grabbed or pushed him or her?   If you answered YES to any of the above, you should call your attorney immediately. Disputes "behind closed doors" are very difficult to defend, and not all domestic disputes involve the police or any written report for that matter. Sometimes I advise parties to physically separate themselves early on in the proceedings to eliminate even the chance of a spouse making a claim of domestic abuse.

If you would like to have a consultation with a Minnesota divorce lawyer, please contact attorney Chris Banas at  651-361-8109.