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In our last several blog posts, we've discussed the recently amended “best interests” factors that Minnesota courts consider in deciding custody and parenting time disputes. In general, the language in the statute has been changed to focus more on the needs of children in a custody matter than on the wishes of parents. Factors we've already looked at include the effect of a child's special needs and the reasonable preference of the child regarding custody.
Another factor courts consider when making decisions about custody is domestic violence. The statute as amended states that the court must consider, “...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.” Previously, the statute only directed the court to look at “the effect on the child of the actions of an abuser, if related to domestic abuse as defined in section 518B.01, that has occurred between the parents or the parties.”
In essence, the statute's old language focused only on domestic abuse between the parents or the parties to the custody action, and the effect on the child of that abuse. There was nothing wrong with the old language as far as it went; it's just that it didn't go far enough. For one thing, the effect on a child of an abuser's actions may not be readily apparent, and is often difficult to prove. The new language requires the court to consider whether domestic abuse has occurred, rather than force parties to demonstrate its effect on the minor child.
Equally, if not more significant: where the old statute only talked about violence between the parents (or the parties to the dispute) the new language asks the court to broaden its scope when considering violence a child may be exposed to. By specifically mentioning “...the parents' or either parent's household or relationship,” the law enables a judge to consider a child's exposure to domestic violence through his or her living situation with a parent, even if both parents were not involved, and even if neither parent was directly involved.
This makes a lot of sense if you think about all the ways in which a child could experience domestic abuse. The news is filled with stories about children witnessing (or experiencing) abuse by a parent's significant other. Beyond this, a parent and child may be living with extended family in a home where domestic abuse is taking place. Minnesota courts are now permitted to consider these and other scenarios in custody disputes. In addition, the new statute language allows a court to consider the “nature and context” of the violence. This takes into consideration the single incident of violence versus the consistent presence of violence.
Lastly, courts are directed to consider the implications of the domestic abuse for the child. Again, it's not necessary to prove an effect that can be attributed directly to the child's experience; instead, when deciding custody disputes, Minnesota courts now may take into account how domestic abuse is likely to affect a child.
Overall, the changes to the law likely will give courts more latitude in how they look at domestic violence and how it affects custody. The overall intention, as with the rest of the changes to Minnesota custody law, is to address kids' needs. If you are a parent who lives in a home where abuse is present, you need to be aware that it could affect your custody of your children.
When you're experiencing domestic abuse, or fear that your child is, you need the help of a Minnesota custody attorney who is familiar with both family law and the impact of domestic violence. Please contact us at Mundahl Law with any questions you have about how domestic abuse could affect your custody case. We look forward to working with you.