Domestic Abuse

Archive for the ‘Domestic Abuse’ Category

will domestic abuse affect my custody or divorce case in Minnesota?

Monday, February 15th, 2010

Sometimes when parties are nearing the point of divorce or a custody battle, there is an incident of domestic abuse that occurs between the parties. If the domestic abuse extends to the children, where they either witnessed or were part of the abusive event, the court may restrict parenting time or any contact between the abuser and the children. The effect of this is clear on any custody dispute: if there is a protective order in place barring a party’s contact with their children, they will not be able to have contact through the family matter. The provisions of the Order for Protection will extend to the family law case, and short of the parties agreeing to modify those terms, it will last the full time of the protective order (generally two years).

This can have long-term effects on custody as well. The abuser may not be prohibited from having any relationship in the future, but it is difficult to overcome an abusive past to reestablish a relationship with your children. The abuser and children will probably go through some reunification therapy and gradually work to develop a relationship and trust again.

If an Order For Protection only protects one parent from the other but the children are not involved, there will generally be parenting time involved. An Order For Protection does make it more likely that the court would order sole legal custody, meaning that the custodial parent would have the sole right to make the big decisions in the children’s lives. However, there would be parenting time arranged through a third party or through a safety center.

The parenting time awarded to parents in abusive relationships varies depending on the unique circumstances of each case. If you have questions about parenting time in your family law case, contact the family law attorneys at Germscheid, Heimerl & Lammers today for a free consultation.

Tags: Custody, Divorce, Domestic Abuse, Parenting Time
Posted in Child Custody, Contested Divorce, Domestic Abuse | No Comments »

How can an order for protection influence a custody case or divorce in Minnesota?

Monday, February 1st, 2010

In the state of Minnesota, if you are the victim of domestic abuse you may be able to obtain an Order for Protection. For more information on OFPs, see our webpage. When an incident of violence occurs during the divorce process or even in a custody dispute once the papers have been filed, a victim is still able to use the court process and protections to obtain an OFP.

An OFP can have additional effects other than just putting a no-contact provision in place. In reality, the OFP may end up resolving some collateral issues outside of just contact. For example, if both parties were residing together before the abuse, the OFP may award temporary occupancy of the home to one party, generally the victim of the abuse. This may have a longer-term effect on the other pending legal action if the home is to be awarded in the future.

Obtaining an OFP gives a party faster results than going through the regular court process, but it should not be abused by parties. Provisions determined in an OFP hearing may be later modified in the family law case that is pending. Also, the court is able to look at all circumstances surrounding the incident of abuse to determine if there really is a valid claim for protection or if the court believes the party is abusing the system to gain an advantage in the family court proceedings. Parties should not feel discouraged from bringing an OFP during a custody or divorce proceeding, but it should only be done when there has been a legitimate incident of abuse, or one party is in fear of the other and needs additional protection from the court that they cannot get through the divorce or custody action.

Tags: Custody, Divorce, Domestic Abuse, Order For Protection
Posted in Child Custody, Contested Divorce, Domestic Abuse, Property Division | No Comments »

A New Way of viewing domestic abuse in family court: “seeing shades of gray”

Monday, January 25th, 2010

Domestic abuse is a serious issue that often infiltrates divorce and custody matters. When emotions and tensions are high, some individuals cannot handle the stress and problems arise. Also, there are plenty of chronic abusers involved in divorce cases where the victim has finally broken free and is working to establish their life without the abuse.

A new trend in domestic abuse research and advocacy is looking at distinguishing between types of abuse and abusers, since not every case is the same and in need of the same treatment. An article published by MPR interviewed Ellen Pence of Praxis International and Liz Richard of the Minnesota Coalition for Battered Women. This article explains the difference in recommendations for “situational violence” perpetrators, such as anger management programs, and chronic abusers, including extensive monitoring and longer jail sentences.

There is currently a two-year pilot program in Minneapolis, The Battered Women’s Justice Project, that is looking at how domestic violence may be viewed differently by custody evaluators, attorneys and judges in the family law system. Advocates hope that the system will be able to take a more nuanced view of domestic abuse and how abuse affects families as a whole, regardless of who the abuse was perpetrated against. There is also a goal of changing the way domestic abuse cases are handled once they are in the family court system.

Tags: Custody, Divorce, Domestic Abuse
Posted in Child Custody, Contested Divorce, Domestic Abuse | No Comments »

Protective Orders: Consequences of Stipulations

Friday, November 13th, 2009

Orders for Protection (OFPs) and Harassment Restraining Orders (HROs) are the legal tools available to individuals to protect themselves from the actions of others. OFPs are used to protect individuals who are in fear of bodily harm from another person. OFPs are covered under Minnesota Statute § 518B, the Domestic Abuse Act. It covers individuals who have a familial relationship, which is defined as one of the following: 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. HROs may be obtained against anyone, regardless of their relationship.

OFPs are often obtained without the assistance of an attorney because there are volunteers who assist in putting together the paperwork needed. Often, when an individual goes to the hearing for an OFP, the parties settle the issue by agreeing to have an OFP against them (or mutually between the parties) in order to avoid having a hearing and testimony being taken. Since the parties are not often represented by counsel, they do not consult with an attorney regarding the effects agreeing to an OFP may have on them. The practice of agreeing to a mutual OFP is generally not the best option for the victim of abuse, however. The OFP may restrict potential employment opportunities; may have negative consequences when trying to obtain housing; and will remain on the individual’s record for other background checks.

A fact sheet describing the HRO and OFP process in more detail may be found here. This fact sheet goes into more detail about the procedure for obtaining both orders and what some negative consequences may be from a victim stipulating to a mutual order.

Tags: Harassment Restraining Order, Mutual OFP, Order For Protection
Posted in Domestic Abuse | No Comments »

Minnesota's Courts Bring New Tools in Fighting Domestic Violence

Thursday, October 8th, 2009

Domestic violence is a huge issue in many family law cases, and many times the victims do not feel like the system is able to help them as much as they need it to. A recent homicide/suicide case has brought this issue to the forefront again. According to the Star Tribune, “[s]ince 2000, more than 200 Minnesota women have died as the result of domestic violence.” This statistic is alarming.

Minnesota was a leading state in the development of domestic violence programs. In 1980, the Duluth Model was created and is recognized on an international level. This was the first program to outline multi-disciplinary procedures to protect and advocate for victims. It looks as though Minnesota is yet again leading the way in the development of domestic violence programs.

The latest program is called Blueprint. It will be implemented next year in St. Paul, and should follow on a national level. This program is described in an article in the Star Tribune from October 4, 2009. It will assess an offender’s risk of harming again, rather than their flight risk, in setting bail. This will hopefully keep more victims of abuse safe following an arrest of the perpetrator.

Hopefully new programs like this will be able to help the problems we see with domestic violence victims. Any matter that goes through the court system runs the risk of having an increased chance of abuse against a victim. Situations such as divorce and custody hearings bring out the worst in many people, and when someone already has a propensity for violence, it is a dangerous situation.

Tags: Bail, Custody, Divorce, Domestic Abuse, Domestic Violence, High Conflict Divorce, Order For Protection
Posted in Child Custody, Child Support, Contested Divorce, Domestic Abuse | No Comments »

ICMCs and the Early Neutral Evaluation Process

Tuesday, October 6th, 2009

In Hennepin County and Ramsey County, the family courts have adjusted to make the process more amicable for cases. Instead of filing a case and having nothing happen for some time, the courts have been automatically setting an initial hearing roughly 3-4 weeks after the time when the case was filed. This hearing, called the Initial Case Management Conference or ICMC for short, allows the parties to meet the judicial officer in charge of their case. It also gives the court the opportunity to assess the issues early on and determine what the best way to handle the case would be.

The ICMC is usually a very informal hearing. Often at ICMCs, the court will order the parties to attend a mediation or early neutral evaluation. This gives the parties the opportunity to work together to try to work out their problems before going further in the court process and becoming more divided. Without using any alternative to court, the parties often become more hostile and set in their ways, and settlement becomes more and more difficult. The courts do not really want to decide such personal issues for people, and the result is often easier for everyone to follow if the parties come to an agreement on any issues without a judge’s help.

Of course, not all cases are suited for resolving through mediation or early neutral evaluation. For example, when domestic violence is an issue, it may be necessary to have the court’s involvement throughout the process. ICMCs allow the court to discover that early on and possibly move up any trial dates so that parties can move on with their lives.

More and more counties are recognizing the benefits of earlier involvement in family law cases. Early neutral evaluation is being integrated into many court systems across the state, and the results have been successful.

Tags: Child Support, Custody, Divorce, Hearing, ICMC, Initial Case Management Conference, Paternity
Posted in Alimony, Child Custody, Child Support, Collaborative Divorce, Contested Divorce, Divorce Mediation, Domestic Abuse, No Fault Divorce, Paternity, Property Division | No Comments »

Relocating a Child Out-of-State

Monday, August 31st, 2009

I get a lot of questions about whether the custodial parent can move a child out of state without the other parent’s permission. In Minnesota, the parent with custody who wishes to move must first obtain the permission of the other parent or get the Court’s permission.

In 2006, the law changed say to a parent cannot relocate out of the state with a minor child unless that parent has one of two things:

Consent of the other parent, if that parent has been given parenting time by an order or decree; or
An order of the court allowing the relocation.

As a result, it is the responsibility of the parent seeking to relocate out of state to file a Motion to get an Order allowing that parent to relocate before doing so.

Failure to follow proper procedure creates a serious risk that the parent who does not want the child to move may seek an ex parte order changing custody immediately, pending a hearing on the relocation issue.

Under Minnesota law, whether or not a parent can move out of state is based on what is in the best interests of the child. The factors the court must consider in determining the child’s best interests include, but are not limited to:

the nature, quality, extent of involvement, and duration of the child’s relationship with the person proposing to relocate and with the non-relocating person, siblings, and other significant persons in the child’s life;
who has been the child’s primary caregiver;
the age, developmental stage, needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development, taking into consideration special needs of the child;
the feasibility of preserving the relationship between the non-relocating person and the child through suitable parenting time arrangements, considering the logistics and financial circumstances of the parties;
the child’s preference, taking into consideration the age and maturity of the child;
whether there is an established pattern of conduct of the person seeking the relocation either to promote or thwart the relationship of the child and the non-relocating person;
whether the relocation of the child will enhance the general quality of the life for both the custodial parent seeking the relocation and the child including, but not limited to, financial or emotional benefit or educational opportunity;
the reasons of each person for seeking or opposing the relocation; and
the effect on the safety and welfare of the child, or of the parent requesting to move the child’s residence, of domestic abuse, as defined in section 518B.01.

The burden of proof is on the parent requesting to move the residence of the child to another state, except that if the court finds that the person requesting permission to move has been a victim of domestic abuse by the other parent, the burden of proof is upon the parent opposing the move.

When making their decision whether or not to allow the move, the court will look at the reasons the parent wants to move, such as employment or family connections. In particular, be prepared to show:

Whether the move would result in a better quality of life your children;
The extent to which your ex currently exercises his right to spend time with the children;
That you are willing to allow for longer, less frequent visits if your request to move out of state is approved;
That you will actively support such changes in the visitation schedule;
That you are prepared to absorb the increased cost of transportation;
And that your move is not an attempt to restrict the other parent’s access to the children

The Court will consider the impact this move out of state will have on your children. It is entirely possible that the benefits of increased pay, or closer proximity to extended family members, do not outweigh the benefits your children enjoy right now as a result of a consistent, ongoing, in-person relationship with their other parent.

Ultimately, the court will make its decision based on what is in the best interest of the child.

There are remedies available if your child has been moved out of state without your permission or a court order.

Tags: Child Custody, Legal Custody, Moving, Out-of-state relocation, Physical Custody
Posted in Child Custody, Contested Divorce, Domestic Abuse, Uncontested Divorce | No Comments »

The Effect of Domestic Abuse on Custody Awards

Monday, August 24th, 2009

Domestic abuse is defined in Minnesota Statute section 518B.01:

“‘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, subdivision 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, subdivision 2.”

The definition includes an explanation of what is meant by “family or household member” as well. This does include individuals who have a child together, whether or not they were ever married or lived together.

It is not uncommon for parents to have a history of domestic abuse between the two of them when going into a custody battle. Many times when a relationship is ending, emotions are high and simple arguments can easily be escalated. This isn’t to say that domestic abuse is ever excusable, but many individuals in this situation, on either side, wonder what effect domestic abuse will have on their custody rights.

In Minnesota, a court must look at 13 factors set out by statute for what is in the “best interest” of the child when determining custody. The best interest factors are described in Minn. Stat. § 518.17. These factors cannot be used to the exclusion of all others, but each must be considered when awarding custody. One of the factors is “the effect on the child of the actions of an abuser…that has occurred between the parents or between a parent and another individual.”

As the statute states, the court must look at the effects of the abuser on the child. This is most important when the child is subject to the abuse or the abuse occurs in the presence of the child. If either of those is the case, the court may require supervised parenting time for the abuser. Parenting time may also be more limited in that instance. Otherwise, if there is an incident between the parents, the court may view the facts and determine how much weight to give that in the final custody determination.

A bigger effect of domestic abuse on custody rights is for legal custody of a child. The court normally has a presumption that it is in the child’s best interest for both parents to have joint legal custody, meaning that both parents participate in making the bigger life decisions for the child. When domestic abuse has occurred, however, that presumption changes; the court presumes that it is in the best interest of the child that only one parent have the right to make those decisions. Both parents retain the right to know information about the child, such as medical care and school enrollment, but only one parent may make decisions regarding those things.

Ultimately, the court’s goal in determining custody is to create a situation that is in the best interest of the child. The court does not want the children to be in an unsafe environment, but it also recognizes the important role both parents play in a child’s life. If you have concerns about domestic abuse and your rights to custody of your child, contact us to discuss your situation.

Tags: Child Custody, Domestic Abuse, Legal Custody, OFP, Order For Protection, Physical Custody
Posted in Child Custody, Domestic Abuse | No Comments »

Welcome To Our Blog

Sunday, August 9th, 2009

This is our first post – we will begin posting soon. Please check back.

Tags: Default Judgment, Fraud Upon the Court, Marital Property, Minneapolis Divorce Attorney, Non-Marital Property, Property Division, Valuation Date
Posted in Alimony, Attorney's Fees, Child Custody, Child Support, Collaborative Divorce, Contested Divorce, Divorce Mediation, Domestic Abuse, Legal Separation, No Fault Divorce, Paternity, Prenuptial Agreements, Property Division, Uncategorized, Uncontested Divorce | No Comments »