How Does Domestic Violence Impact Parental Rights?
What is Domestic Violence?
Domestic violence is about control and can take many forms. While most people imagine domestic violence as purely physical abuse, it can also include emotional and psychological abuse. It’s common for domestic violence to begin with emotional and psychological abuse before escalating to physical abuse.
What is the Impact of Domestic Violence in Family Law?
When domestic violence occurs in a relationship where the parties share children, it will affect their ability to co-parent. A court must take domestic violence into account when making determinations about parental responsibilities. Parenting responsibilities consist of two parts: parenting time, which is the time each parent spends with the children; and decision-making authority, which is the ability to make major decisions for the children.
If you are in the process of a divorce or a proceeding to determine the allocation of parental responsibilities, a victim of domestic violence can seek a protection order as part of the case. To get a temporary protection order against your abuser, you must prove that you are in “imminent danger.” In some circumstances, your children may also be included in the protection order.
Parenting Responsibilities: Decision-Making
When you file a Petition for Dissolution of Marriage or a Petition for Allocation of Parental Responsibilities, the Court must make orders about parenting time and decision-making authority. Often, the court orders joint decision-making for the parties. However, if a spouse has been a perpetrator of domestic violence, a court must make specific findings before it imposes joint decision-making on a victim of domestic violence.
If the court finds that it’s more likely than not that domestic violence has occurred, then by law the court cannot impose joint decision-making responsibility unless there’s evidence that the parties can make joint decisions cooperatively and in a manner that is safe for the children and the abused spouse.
Typically, if the court hears credible evidence of domestic violence, it should not order that the parents must make joint decisions. Joint decision-making responsibility requires that the parents discuss major issues and engage in a conversation. When one parent fears the other, being forced to have regular discussions with the abuser just allows the abuser to perpetuate the intimidation and control. Most judges are mindful of the domestic violence dynamic and are careful to protect the victim and children.
Parenting Responsibilities: Parenting Time
Parenting time is the physical care of your children. Besides the court’s limitations on decision-making in domestic violence relationships, the court also considers the best way to facilitate parenting time that protects the victim and children.
The court may issue orders that ensure everyone’s safety, such as requiring the parties to communicate via a communication app or exchange their children in a protected setting, like a police station parking lot. In some cases, the court may order supervised parenting time or restrict overnight parenting time.
The court has quite a bit of power to craft an order that fits your individual circumstances to protect you and the children. It’s critical that you have a good lawyer to make sure your parenting plan accurately reflects your situation and proactively protects you and your children.
Protection Orders
If you believe you are in “imminent danger,” your first line of defense is to call the police. Never take your safety, or the security of your children, lightly. If you think you are in danger, call 9-1-1.
You can also seek a protection order from a court. A civil protection order can be issued by a county court or you may seek the protection order when you file a Petition for Dissolution or a Petition for Allocation of Parental Responsibilities. The judge presiding over your family law matter has the authority to enter a temporary protection order.
Each jurisdiction has procedures for obtaining a protection order and must have a judge available seven days a week for issuing protection orders. Most jurisdictions also have advocates available to assist you in obtaining a protection order.
The process begins with a motion and affidavit setting forth the acts that constitute domestic violence. This also includes the factual allegations that support a finding that you are in “imminent danger.” This determination is made on an ex parte basis, meaning that the request is submitted to the court and a decision is made without the abuser having any input.
If the court finds by a preponderance of the evidence that you are a victim of domestic violence, the court will issue a temporary protection order. This order lasts only until the court can hold a hearing, at which the abuser gets to appear and respond to the allegations. The hearing must be held within 14 days of issuing the temporary protection order.
A temporary protection order prohibits the other person from contacting you in any way, and from harassing, injuring, intimidating, threatening, molesting, touching, stalking, sexually assaulting or abusing you. Your children may be included in the order under certain circumstances—for example, if they were also abused or witnessed the abuse. The abuser may be excluded from your shared home and you may be awarded temporary custody of your children. The court may also order that the abuser not be allowed to contact the children at school and may protect your pet from harm as well, so that your dog, cat, or another pet cannot be used to retaliate against you.
A temporary protection order can last up to a year in some circumstances, or the order may be converted to a permanent protection order after a hearing at which both parties appear and produce evidence.
Helpful Resources and Information
For many victims of domestic violence, the hardest part is admitting that they are victims and seeking help. There are not only legal remedies available to you; there are community resources that you can access, too.
If you believe you are a victim of domestic abuse, you should create a safety plan. A safety plan should include a place to stay if necessary and the financial ability to provide for yourself and your children during that time period. You can contact your local police department and speak with a victim advocate about how to build your unique safety plan. It can be helpful to confide in safe family and friends about the abuse. Try to leave the house to run errands and then seek help. Shelters are a great resource for victims of domestic abuse. You can receive additional information at https://www.thehotline.org/.
If you believe you or your children are in imminent danger, you should call 9-1-1. If you need to call 9-1-1 for help and but cannot speak candidly, try to give the operator your address in a way that seems like you are ordering food or paying a bill. Although it may be difficult to witness your partner be arrested for domestic violence, this may be the only way to protect yourself and your family in a dangerous situation. If your partner is charged with domestic violence, a mandatory protection order will be issued protecting you and your children. The mandatory protection order that is associated with a criminal case is a different type of protection order than the civil protection order discussed above but has some of the same features. A protection order that is issued in a criminal case lasts if the case is pending, including the period of any probation or other type of sentence.
If you’re facing a legal case related to domestic violence, reach out. We can help you determine if Thrive Family Law is the right fit for you or direct you to other legal resources.
