Acts of domestic abuse that occur during a marriage can have a substantial impact on custody proceedings. A finding of domestic abuse can prohibit parties from sharing joint physical custody of their children.
Minnesota’s Domestic Abuse Act is contained within Minnesota Statutes Section 518B. It defines domestic abuse as “physical harm, bodily injury, assault, or the infliction of imminent physical harm between family or household members” or “criminal sexual conduct” committed against the family or household member by an adult family or household member.” The physical acts described above are relatively straightforward. Difficulties arise, however, when threats of physical harm are not followed with an act resulting in physical harm. The question for the Court involves whether a threat results in fear of harm and whether that fear was reasonable under the circumstances.
A litigant bringing an act of domestic abuse to the attention of the court is ultimately seeking an Order for Protection. Such an Order prohibits contact by the offending party upon the victim, and often denies the perpetrator access to the victim’s residence and place of employment.
In order to secure an Order for Protection, the victim will first petition the court without notice to the perpetrator. The court must accept as true the allegations contained within the petition. If these allegations rise to the level of domestic abuse as defined by law, the court will enter a temporary order. Then, the perpetrator is served with notice of the entry of the order. At that point, the perpetrator may contest the issuance of the order by participating in an evidentiary hearing (a mini trial) on the issues.
If an Order for Protection is entered, criminal penalties are attached to a violation of the order. As an additional consequence, if the situation involves acts of domestic abuse among a husband and wife who are dissolving their marriage, it is rather unlikely the court will consider an award of joint physical custody of the children of the parties.