How Domestic Violence Affects Child Custody in Minnesota

Domestic violence is an equal opportunity offender that affects men, women, and children alike. When a couple breaks up after domestic violence has occurred, a history of abuse can have an impact on custody.

This article will explain what domestic violence is and how it affects child custody. If you have any questions after you read this article, consult with a family law attorney for advice.

Domestic Violence Overview

Domestic violence includes more than just physical injuries. Sometimes, people are victimized by domestic violence, but think that because they haven't been physically wounded, they aren't really victims. These people may go without legal help or may not take advantage of community resources. So it's important to understand what domestic violence means.

Minnesota's Domestic Abuse Act is a law that 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 to understand their legal rights and find a safe haven when they're in danger.

For those who just need information, the Minnesota Coalition for Battered Women has an online listing of publications that explain domestic violence through reports, prosecution manuals, and fact sheets.

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. Day One works statewide to link domestic abuse victims with safety and services. For those who need therapy and support, the Domestic Abuse Project connects victims to shelters and also provides one-on-one counseling for victims and perpetrators of domestic violence.

Finally, the Minnesota Judicial Branch's online Self-Help Center contains a special section on domestic abuse. Each of Minnesota's ten judicial districts also has legal advice clinics and self-help centers.

Domestic Abuse and Child Custody

In Minnesota, domestic abuse has a major impact on child custody.

There are two kinds of custody: legal and physical. In many cases, physical custody goes to the parent who provides the majority of the daily care for the children (for example, bathing, feeding, and transportation). Legal custody, on the other hand, refers to a parent's legal right to make important educational, medical, religious, cultural, and other decisions for their children. In most cases, both parents have joint (shared) legal custody.

This arrangement is altered when there has been domestic abuse. Family law judges always have to consider 13 total factors relating to the best interests of the child when they decide who should have legal or physical custody. The factors include:

• the parents' wishes
• the reasonable preference of the child, if the child is old enough to explain it
• the child's primary caretaker
• the closeness of the relationship between each parent and the child
• the relationship of the child with parents, siblings, and other important people in the child's life
• how well adjusted the child is to the home, school, and community
• how long the child has lived in a stable, suitable environment, and how desirable it is to maintain that environment
• the permanence, as a family unit, of the current and the proposed custodial homes
• the mental and physical health of everyone involved
• each parent's ability and willingness to give the child love, affection, and guidance, and to continue educating and raising the child in the child's culture or creed
• the child's cultural background
• the effect on the child of domestic abuse that has occurred between the parents or between or between a parent and another individual, and
• if no domestic abuse has occurred, whether each parent is willing to encourage the child to visit with the other parent

Domestic abuse is one of the factors a judge must consider when making a custody decision. Domestic abusebetween the parents has to be considered, but domestic abuse in other relationships is equally important. If a parent was abusive toward a previous partner or another child, the judge will consider that behavior when deciding who has custody of the children.

Domestic abuse can also affect other factors, depending on the circumstances. For example, the mental health of the children would be negatively affected if there is abuse between the parents, and a judge would consider this.

Finally, there are cases where one or both parents ask the court to give them joint custody (physical, legal, or both) of the children. In these cases, 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.

Again, if the court accepts evidence that there's been domestic violence between the parents, that can be a reason to deny all requests for joint custody. In fact, if there's been domestic violence between the parents, the court has to use a "rebuttable presumption" (meaning, make a legal assumption) that joint legal and physical custody is not in the best interests of the child. If the parent who perpetrated the violence can't overcome that presumption, the parent who was the victim will have sole custody.

Impact on Visitation

Visitation is called "parenting time" in Minnesota. If there is a domestic abuse protection order against an abusive parent, the judge has to consider that information when establishing parenting time and issue an order in the child's best interests. The non-abusive parent can also request supervised parenting time. This means the abusive parent can still visit with the child, but only in the presence of another responsible adult, one who will monitor the situation and protect the child.

Parenting time can be supervised by a friend or relative, or can be hosted by a therapist or facility. The court has the right to make the abusive parent pay for all of the costs of supervised parenting time and will generally only transition to unsupervised parenting time when the protection order expires or the abusive parent shows evidence of rehabilitation through counseling and classwork.

Termination of Parental Rights

Termination of parental rights means that the parent and child relationship is severed, and the parent permanently loses all rights to custody of his or her child.

A judge has the right to terminate the parental rights to a child if a parent is unfit because a consistent pattern of specific conduct makes the parent unable to care for the physical, mental, and emotional needs of the child. This pattern must endure despite multiple attempts to remedy it. A history of severe and extreme domestic abusive may qualify for termination of parental rights.