Domestic Abuse in Minnesota Family Court

ISSUES OF DOMESTIC ABUSE IN FAMILY COURT PROCEEDINGS

Domestic abuse is a serious issue in Minnesota. A number of court actions may stem from the actions of an abuser. These include divorce proceedings, Child in Need of Protection or Services (CHIPS) proceedings, a petition for an order for protection (OFP), and criminal charges being brought. The interplay among these cases can have serious family law consequences in terms of custody and parenting time. It is important to recognize and understand how domestic abuse charges or allegations can affect your family law case.

What is the Difference Between an Order for Protection and a Harassment Restraining Order?

An order for protection (OFP) is a protective order issued out of family court. To obtain an OFP, the person seeking protection (the petitioner) must prove that it is more likely than not:

1. That the alleged abuser (respondent) committed “domestic abuse” against the petitioner; and

2. That there is a “family or household” relationship between the petitioner and the respondent.

Under Minnesota Statutes § 518B.01, subdivision 2(a), “domestic abuse” is defined as (1) physical harm; (2) imminent fear of physical harm; (3) terroristic threats; (4) criminal sexual conduct; or (5) interference with an emergency call. “Family or household member” is defined as (1) spouses, former spouses or blood relatives; (2) people who live in the same household together or used to live in the same house together; (3) people who have a child together; (4) people who have a pregnancy in common; or (5) dating partners in a significant romantic or sexual relationship. If an OFP is granted, the court may order that the respondent cannot contact the petitioner, establish temporary custody, parenting time, or child support, and order that the respondent be excluded from the respondent’s home, work, or even a joint minor child’s daycare.

A harassment restraining order (HRO) is a protective order issued out of civil court. To obtain an HRO, the petitioner must prove that it is more likely than not that the respondent harassed the petitioner. Under Minnesota Statutes § 609.748, subdivision 1(a), “harassment” is defined as:

1. a single incident of physical or sexual assault;

2. a single incident of using the petitioner’s personal information, without their consent, to invite, encourage, or solicit a third party to engage in a sexual act with the person;

3. a single incident of nonconsensual dissemination of private sexual images;

4. repeated incidents of intrusive or unwanted acts, words, or gestures that have a substantial adverse effect or are intended to have a substantial adverse effect on the safety, security, or privacy of the petitioner;

5. targeted residential picketing; or

6. a pattern of attending public events after being notified that the actor’s presence at the event is harassing to the petitioner.

Unlike an OFP, there is no relationship requirement that needs to exist between the petitioner and the respondent. A petitioner can get an HRO against anyone, including a stranger. If an HRO is granted, the court will generally order no further harassment and that the respondent cannot contact the petitioner.

What is a Domestic Abuse No Contact Order?

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 issues are decided and where the criminal charges or conviction are for:

1. domestic abuse;

2. stalking which occurred against a family or household member;

3. a violation of an OFP; or

4. a violation of a prior DANCO.

What Effect Does an OFP, HRO, or DANCO have on the Respondent’s Right to Possess Firearms?

A qualifying OFP that has been issued after the respondent receives notice of a hearing and has been provided an opportunity to be heard prohibits the respondent from possessing firearms as long as the OFP is in effect. A qualifying OFP is an OFP which:

1. restrains the respondent from harassing, stalking, or threatening an intimate partner of the respondent or child of the intimate partner or child of the respondent, or engaging in other conduct that would place the respondent’s intimate partner in reasonable fear of bodily injury to the partner or the child; and

2. includes a finding that the respondent represents a credible threat to the physical safety of the intimate partner or child; or by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against the intimate partner or child that would reasonably be expected to cause bodily injury.

By contrast, an HRO does not affect the respondent’s right to possess a firearm and, a DANCO, by itself, does not affect the defendant’s right to possess a firearm.

How Does an Allegation of Domestic Abuse Affect Custody and Parenting-time Issues?

Domestic abuse may affect a number of aspects of custody and parenting-time cases. It may affect whether or not mediation is recommended. Domestic abuse also affects the best interests of the child(ren) involved. Courts not only must consider whether domestic abuse has occurred, but what the nature and context of the domestic abuse is and what the implications of the domestic abuse are for parenting and for the child(ren)’s safety, well-being, and developmental needs. There is a strong presumption against joint legal and physical custody when there is domestic abuse. 

Can you File an OFP or HRO on Behalf of your Minor Children?

Both the OFP and HRO statutes allow parents to petition for a protective order on their child(ren)’s behalf. The OFP statute allows:

1. any adult to file an OFP against a family or household member; 

2. a minor, age 16 or older, to file on their own behalf against a spouse or former spouse, or against a person with whom the petitioner shares a child in common; or

3. all other minors must have a parent, a family or household member, guardian, or a reputable adult 25 years or older file on the petitioner’s behalf.

Conversely, the HRO statute only allows for a parent, guardian, or stepparent of a minor to petition on the child’s behalf.

Do Domestic Violence Victims have to Mediate Divorce Cases with their Abusers?

Courts cannot require any party who claims to be the victim of domestic abuse to participate in mediation in divorce, custody and parenting time, child support, OFPs, paternity, and third-party custody matters.

How Does an OFP Interplay with Divorce, Custody, or Paternity Proceedings?

Courts may establish temporary custody and parenting time in an OFP between married couples or for a father who has a valid recognition of parentage (ROP). However, a court may not establish paternity in an OFP. Additionally, an OFP may modify a temporary or permanent custody or parenting-time order. Courts may not modify or vacate a provision restraining an abusing party from committing acts of domestic abuse in an OFP. The court can, however, otherwise modify an OFP within a divorce proceeding. 

Domestic abuse plays a significantly large role in family court proceedings. Domestic violence may seriously affect your family law court case and may have serious civil and criminal implications, as well. If you are the victim of domestic abuse, or are being alleged of having committed acts of domestic violence, it is important to contact an experienced family law attorney to help you protect your rights. Contact the attorneys at RAM Law PLLC today.