Domestic violence plays a vital role in determining child custody during a divorce. It’s also a source of emotional trauma for all parties, adults and children alike.
That can make complex issues challenging, like visitation and parental rights.
This article discusses the role domestic violence plays in Minnesota divorce cases and what it means for parents and children going forward.
Domestic Violence Legislature in Minnesota
It is of popular belief that Minnesota’s rules for domestic violence are purely physical.
However, this isn’t true for every case, but it can and does stop many people from seeking divorce or advice from a family lawyer based on their situation.
According to the Minnesota Domestic Abuse Act, physical abuse is unequivocally part of what constitutes domestic violence, but it also includes:
- Deliberately instilling fear/intimidation in a family member
- Frightening a family member into perceiving/believing physical abuse, assault, or injury is imminent
- Threatening to and intending to follow through on terrorizing a family member
- Sexual assault
- Preventing family from completing an emergency call
This means that domestic violence can be categorized by more than just physical abuse. Making threats about causing harm to another person can also be considered a form of domestic abuse. If you think you are suffering from domestic abuse, you should consider contacting a family lawyer to see how they can help you.
What Constitutes a Family Member?
Another thing that is important to understand when interpreting Minnesota’s domestic violence legislature is what the state means by a family member.
This is particularly helpful for victims of abuse or domestic violence considering consulting with a divorce lawyer.
There are several definitions of who a family member is, which are all integral to determining the outcome of the child custody hearing. These include:
- Current or former partners
- Parents and children
- Blood relatives
- People who share a child, irrespective of the parents’ intrapersonal relationship
- People who share an unborn child where one person is alleged to have fathered that child
- People participating in an ongoing romantic or sexual relationship
Domestic Violence and Child Custody
As discussed, determining what constitutes a family member is important in domestic violence cases because it impacts a person’s ability to interact with the child.
There are two types of child custody: legal and physical
Legal custody refers to a parent’s ability to impact their child’s:
- Education
- Religious beliefs
- Medical decisions
- Cultural understanding
In other words, legal custody affects the child’s life but doesn’t necessarily entitle the parent with their rights to see or even interact with their child.
On the other hand, physical custody involves proximity to the child. Typically, this is what parents debate over when determining visitation rights during a divorce.
On average, physical custody is granted to the parent who is more actively involved in the child’s life, or is the one who takes responsibility for things like feeding, bathing, and driving them to school. However, if there is a strong case that the primary carer abuses the child, that impacts who takes physical custody of the child(ren).
There are several factors a family court must assess to assign custody in domestic violence cases appropriately. These include:
- Parental rights
- Child’s parental preference, if appropriate
- Primary caregiver
- Emotional proximity between parents and child
- Emotional proximity of child to siblings and extended family
- The extent of the child’s integration/connection in their local community (e.g., school, religious institutions, neighbors)
- Stability of home environment
- Mental/physical health of family members
- Parental commitment to preserving a child’s emotional stability and prioritizing it over disputes between parents/partners
- Child’s culture/heritage and the importance of preserving it
- Impact of domestic abuse on parent(s) and child
The family court must also determine the parents’ commitment to sustaining amicable relationships between the child and both parents once the divorce is decreed.
However, it’s also important to note that not all children are considered old enough to offer an opinion on their parental preference during child custody hearings across the country. Although, many people believe there is a particular age at which children’s preferences are taken into account when deciding the outcome of a child custody hearing, but that’s not true in all cases.
Minnesota law is much more nebulous, as there is no hard and fast rule about what age courts start considering a child’s parental preference. Instead, it is left to the discretion of the judge to decide, based on the child’s:
- Age
- Emotional maturity
- Relationship with parents
If you are going through a child custody battle, contact a lawyer today to see how they can help you and your family.
Abuse and Visitation Rights
Even if abuse is apparent to a judge, it doesn’t preclude the possibility that the abuser may be entitled to visitation rights with the child. A parent that loses custody can still argue that it’s within their parental rights to see their child.
Additionally, the judge has more to consider than emotional or physical violence when making a decision over visitation rights. They must also take into consideration whether or not severing the parent-child relationship would be more or less damaging to the child than having witnessed or experienced abuse in the first place.
However, visitation rights aren’t the same as custody, and it’s possible that these visits might be monitored by an unbiased supervisor. Usually, this is someone who was not a party to domestic violence, but who has a pre-existing relationship with the child. Although, the court may designate a social worker to sit in on these visits.
You might also need to file a separate court case to petition for supervised visitation. If it’s something that you feel strongly about, consult with a lawyer to see if it’s worth filing for.
How Domestic Violence Language Evolved
The legal language surrounding domestic violence and abuse has changed significantly in recent years.
You used to have to provide evidence of physical abuse, especially towards a child, when trying to negotiate custody and visitation.
However, as our understanding has shifted, the focus has become less on physical signs of abuse like bruising although these things are still important and more on the psychological impact of living with abuse, even if the child involved is not a direct recipient of it.
Contact a Family Lawyer Today
Establishing parental rights and custody in domestic violence cases can be extremely complicated. There are several factors judges need to consider when deciding the outcome of a child custody case, and understanding them can be challenging for some people.
If you are worried about your child custody arrangements after leaving an abusive situation, the most helpful thing you can do is talk with a lawyer. Contact CJB Law today to see how we can assist your legal needs.
We will be more than happy to explain the legal ins and outs of the potential child custody case and help you know what to expect before heading to court. That way, you and your child can avoid being surprised by the outcome.