An Order for Protection (OFP) is a civil order prohibiting a family or household member from contacting the petitioning party when domestic abuse has occurred, or there is an imminent threat that domestic abuse will occur.  A judge can grant an Order for Protection for up to two years, and there is no cost to file.  A parent can apply for an Order for Protection for herself or himself.  A person may also apply on behalf of his or her minor child if the child has been the victim of abuse or a threat of abuse exists.  The petition process itself includes a sworn written statement that should provide details and dates of allegations of abuse or threats. 

When the alleged perpetrator of domestic abuse is the child’s other parent, an OFP creates unique challenges for the respondent parent in not only communicating about the child, but also legal custody decisions and access to parenting time.  An Order for Protection should include specific terms for how the parent and child can continue to have a relationship while ensuring the child and other parent receive protection.  Ideally, these terms should state a clear schedule for parenting time, parameters for how the parents will communicate about the child, and address child support issues.  Both parents will fully understand the court’s expectations if the order provides detailed terms.  This decreases the chance of the respondent violating the Order for Protection.  An Order for Protection violation is a crime that has serious consequences that are also cumulative and can impact a future child custody proceeding. Separately, a person who violates an Order for Protection is removable from the United States.  As with any criminal record, violating an OFP can trigger other consequences for employment, human services licensing, and housing that can last a lifetime.

Parents often believe that obtaining an OFP ensure that he or she will receive sole legal custody and a majority of the parenting time.  This is not necessarily true.  It is correct that a judge must consider the existence of an OFP.  However, an OFP is not an absolute guarantee that the court will ultimately award custody as the person requests it. 

If the parties cannot communicate with each other because an OFP prohibits all communication, then practically speaking, only one parent may be able to make decisions about legal custody, which centers on the child’s medical care, education, and religion.  So what about the parent with the OFP against him or her, who historically took part in legal custody decisions and is not accused of harming the child? Should the courts take this power away simply because the one or two year OFP outlaws contact between the parents? Do exceptions for communication about the child make a difference?  

Under Minn. Stat. Sec. 518.17 (2015), a judge must consider best interest factors for the child, and one of the factors is “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”.  Minn. Stat. Sec. 518B.01 defines domestic abuse as any of the following acts against a family or household member: physical harm, bodily injury, or assault, infliction of fear of imminent physical harm, bodily injury, or assault, or terroristic threats (now known as “Threats of Violence” in Minn. Stat. 609.713 because of a law change this year), criminal sexual assault, or interference with an emergency call.  

This factor, however, is one of twelve best interest factors.  The existence of domestic abuse does not definitively rule out joint legal custody, and a party seeking sole legal custody cannot completely rely on the existence of an Order for Protection or a finding of domestic abuse to mean that they will be granted what they want automatically.  Although a judge must use a rebuttable presumption that joint legal custody is not in the best interests of their child if domestic abuse has occurred under Minn. Stat. Sec. 518B.01, this is not a singular conclusion.

If a judge finds domestic abuse occurred, the judge is then required to take a closer look at “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.”  Id.  This is where the family law attorney must carefully focus when preparing for a contested evidentiary hearing on the issue of legal custody.   

Wilson Law Group represents parents seeking and defending Order for Protection matters.  You need a skilled advocate who is not afraid of challenging the other parent in an contested hearing.  Please contact Wilson Law Group at 612-436-7100 for a consultation to discuss how we can maximize your rights under the law.