Impact of Domestic Violence on Child Custody

Domestic violence affects men, women, and children. When couples separate after such incidents, a history of abuse can influence custody and parenting time decisions made in divorce or custody cases.

 

For questions, call Maury Beaulier at 612-240-8005.

 

Domestic Violence Overview

 

Domestic violence includes various forms of abuse beyond physical harm. Many individuals may not see themselves as victims without physical injuries. Promoting a clear understanding of domestic violence is essential to ensure that all affected individuals receive the necessary assistance.

 

Minnesota's Domestic Abuse Act is a law that allows a person who is the victim of certain types of domestic violence to seek a restraining order called an Order for Protection or OFP.  The Act defines domestic abuse as:

•    infliction of physical harm, bodily injury, or assault
•    infliction of fear of imminent physical harm (meaning, one partner makes the other fearful that violence is on the verge of occurring)
•    terroristic threats (making threats with the intent to terrorize someone)
•    criminal sexual conduct (sexual abuse), and
•    interference with an emergency call (for example, if a victim calls 911 for help and the perpetrator unplugs the phone).

 

The Domestic Abuse Act also states that domestic abuse is committed among and between "family and household members." These are people who are:

•    current or former spouses
•    parents and children
•    people who are related by blood
•    people who are currently living together or who have lived together in the past
•    people who have a child in common, regardless of whether they have ever married or lived together
•    a man and a woman if the woman is pregnant and the man is alleged to be the father, regardless of whether they've ever married or lived together, or
•    people who are currently involved in a significant romantic or sexual relationship.

 

Community Resources

 

Minnesota has many groups and organizations aimed at helping victims of domestic abuse.

The Minnesota Coalition for Battered Women has an online listing of publications that explain domestic violence through reports, prosecution manuals, and fact sheets.

 

Cornerstone/Minnesota Day One offers free and confidential help, call the Crisis line at 1-866-223-1111 to speak with an advocate (interpreters available) or text 612-399-9995. 

 

Domestic Abuse and Child Custody

 

In Minnesota, domestic abuse has a major impact on child custody. The definition of abuse that impacts custody can be even more broad than the definitions under the Domestic Abuse Act.  It may include behavior that does not rise to the level of a fear of physical harm. 

Custody is divided into two types: legal and physical. Physical custody typically goes to the parent who provides most daily care, like feeding and transportation. Legal custody involves a parent’s right to make key decisions regarding a child's education, health, and upbringing. Generally, both parents share joint legal custody.

 

Family law judges consider 12 key factors related to the child's best interests when determining physical custody or parenting time.The factors include:
(1) a child's physical, emotional, cultural, spiritual, and other needs, and the effect of the proposed arrangements on the child's needs and development;

(2) any special medical, mental health, developmental disability, or educational needs that the child may have that may require special parenting arrangements or access to recommended services;

(3) the reasonable preference of the child, if the court deems the child to be of sufficient ability, age, and maturity to express an independent, reliable preference;

(4) whether domestic abuse, as defined in section 518B.01 , has occurred in the parents' or either parent's household or relationship; 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;

(5) any physical, mental, or chemical health issue of a parent that affects the child's safety or developmental needs;

(6) the history and nature of each parent's participation in providing care for the child;

(7) the willingness and ability of each parent to provide ongoing care for the child; to meet the child's ongoing developmental, emotional, spiritual, and cultural needs; and to maintain consistency and follow through with parenting time;

(8) the effect on the child's well-being and development of changes to home, school, and community;

(9) the effect of the proposed arrangements on the ongoing relationships between the child and each parent, siblings, and other significant persons in the child's life;

(10) the benefit to the child in maximizing parenting time with both parents and the detriment to the child in limiting parenting time with either parent;

(11) except in cases in which domestic abuse as described in clause (4) has occurred, the disposition of each parent to support the child's relationship with the other parent and to encourage and permit frequent and continuing contact between the child and the other parent; and

(12) the willingness and ability of parents to cooperate in the rearing of their child; to maximize sharing information and minimize exposure of the child to parental conflict; and to utilize methods for resolving disputes regarding any major decision concerning the life of the child.

 

 

For legal custody, the judge must consider:
•    the ability of the parents to cooperate in childrearing
•    whether the parents have methods, and are willing to use them, to resolve disputes about their child
•    whether it would be harmful to the child if only one parent had sole authority over the child's life, and
•    whether domestic abuse has occurred between the parents.

 

The court shall must 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 custody or joint physical custody is not in the best interests of the child if domestic abuse, as defined by the Domestic Abuse Act 518B.01 , has occurred between the parents. In determining whether the presumption is rebutted, the court shall 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. Disagreement alone over whether to grant sole or joint custody does not constitute an inability of parents to cooperate in the rearing of their children.

 

Parenting Time

 

In Minnesota, visitation is known as "parenting time." If there is a domestic abuse protection order against an abusive parent, the judge must consider this when determining parenting time to protect the child's best interests. The non-abusive parent can request supervised parenting time, allowing the abusive parent to visit the child only in the presence of a responsible adult who ensures the child's safety.

The court can require the abusive parent to cover supervised parenting time costs and typically moves to unsupervised visits only after the protection order expires or the parent demonstrates rehabilitation through counseling and classes.