Child Protection Issues Stemming From Domestic Abuse

Custody and Visitation

Marriage dissolution petition

A petition for dissolution of marriage or legal separation must allege whether an OFP that governs the parties or a party and a minor child of the parties is in effect and, if so, the district court or similar jurisdiction in which it was entered. Minn. Stat. § 518.10.

Custody disputes

In a proceeding where two or more parties seek custody of a child, the court must consider and evaluate all relevant factors in determining the best interests of the child. One of the relevant factors set forth in Minnesota law is the effect on the child of the actions of abuse that has occurred between the parents or the parties. Minn. Stat. §§ 257.025; 257C.04; and 518.17.

When joint legal or physical custody is contemplated, the court must consider whether domestic abuse has occurred between the parents. If domestic abuse has occurred between the parents, the court must apply a rebuttable presumption that joint legal or physical custody is not in the best interests of the child. Minn. Stat. § 518.17.

Parenting plan

Upon the request of both parents, a parenting plan may be created in lieu of an order for child custody. A parenting plan must include a schedule of time each parent spends with the child, a designation of decision-making responsibilities, and a method of dispute resolution. The court may not require a parenting plan that provides for joint legal custody or the use of dispute resolution processes (other than the judicial process) if the court finds that either parent has engaged in acts of domestic abuse or child abuse. Minn. Stat. § 518.1705.

In determining custody, a court must consider a finding under the Domestic Abuse Act or under a similar law of another state that domestic abuse has occurred between the parties. Minn. Stat. § 518B.01, subd. 17.

Parenting time

Upon the request of either parent, the court must grant parenting time on behalf of the child and parent to enable them to maintain a parent-child relationship that will be in the best interests of the child. If the court finds, however, after a hearing, that parenting time is likely to endanger the child’s physical or emotional health or impair the child’s emotional development, the court must restrict parenting time and may deny parenting time entirely, if the circumstances warrant.

If a parent requests supervised parenting time and an OFP is in effect, the judge or judicial officer must consider the OFP in making a decision regarding parenting time. Minn. Stat. § 518.175.

Modification of parenting time

If a parent specifically alleges that parenting time places the parent or child in danger of harm, the court must hold a hearing at the earliest possible time to determine the need to modify the order granting parenting time. The court must modify an order granting or denying parenting time whenever modification would serve the best interests of the child. Parenting time may not be restricted unless the parenting time is likely to endanger the child’s physical or emotional health or impair the child’s emotional development or the parent has chronically and unreasonably failed to comply with court-ordered parenting time. Minn. Stat. § 518.175.

Additional parenting time to provide child care

The court may allow additional parenting time to provide child care while the other parent is working, subject to reasonableness and the best interests of the child. In making this determination, the court must consider whether domestic abuse has occurred between the parties. Minn. Stat. § 518.175.

Move to another state

If a parenting-time order is in effect, the court must look at the effect of domestic abuse on the safety and welfare of the child and the parent when considering a request from a parent to move a child to another state. The burden of proof is upon the parent requesting the move, except that if the court finds that the person requesting the move is a victim of domestic violence, the burden of proof is on the parent opposing the move. Minn. Stat. § 518.175.

Custody and parenting time of children to unmarried persons

A proceeding by a father whose paternity has been recognized under Minnesota law to petition for rights of parenting time or custody may not be combined with a proceeding under the Domestic Abuse Act. Minn. Stat. § 257.541.

Also, a petition by certain other individuals (e.g., grandparents or a person with whom a child has resided) for visitation rights may not be combined with a proceeding under the Domestic Abuse Act. Minn. Stat. § 257C.08.

Participation in a parenting plan when a person is convicted of certain offenses. If a person seeking child custody or parenting time has been convicted of an applicable crime,14 the person seeking custody or parenting time has the burden to prove that custody or parenting time is in the best interests of the child. This provision applies if the conviction occurred within the preceding five years; the person currently is incarcerated, on probation or under supervised release for the offense; or the victim of the crime was a family or household member. In these cases, the court may not grant custody or parenting time to the person unless it finds that the custody or parenting time is in the best interests of the child. Minn. Stat. § 518.179.

Also, if a person who has court-ordered custody of a child or parenting-time rights is convicted of an applicable crime and no action is pending regarding custody or parenting time, the sentencing court must refer the matter to the appropriate family court for action. The family court must:

  • grant temporary custody to the noncustodial parent, unless it finds that another custody arrangement is in the best interests of the child; or
  • suspend parenting-time rights, unless it finds that parenting time with the convicted person is in the best interests of the child.

Proceedings under this law must be expedited. The defendant has the burden of proving that continued custody or parenting time is in the best interests of the child. Minn. Stat. § 631.52.

If the victim of the crime was a family or household member, the standard of proof is clear and convincing evidence. Minn. Stat. §§ 518.179 and 631.52.

Temporary orders and restraining orders

A temporary order in a proceeding brought for custody, dissolution, legal separation, or related matters may not vacate or modify an order granted under the Domestic Abuse Act restraining an abusing party from committing acts of domestic abuse. Upon proper motion the court may, however, hear a motion for modification of an OFP concurrently with a proceeding for dissolution of marriage. Minn. Stat. § 518.131.

Guardian ad litem

In all child custody, marriage dissolution, or legal separation proceedings in which custody or parenting time of a minor child is an issue, the court must appoint a guardian ad litem if the court has reason to believe that the minor child is a victim of domestic child abuse or neglect. The guardian ad litem must represent the interests of the child and provide advice to the court on custody and parenting time. Minn. Stat. § 518.165.

Adoption

Adoption study

An adoption study, complete background study, and written report must be completed before a child is placed in a prospective adoptive home. The study must examine several factors, including a check on felony convictions for spousal and child abuse. Minn. Stat. § 259.41.

Domestic Child Abuse

Domestic child abuse.

“Domestic child abuse” means:

  • any physical injury to a minor family or household member inflicted by an adult family or household member other than by accidental means; or
  • subjection of a minor family or household member by an adult family or household member to any act which constitutes a violation of sections 609.321 to 609.324 (prostitution crimes), 609.342 (first-degree criminal sexual conduct), 609.343 (second-degree criminal sexual conduct), 609.344 (third-degree criminal sexual conduct), 609.345 (fourth-degree criminal sexual conduct), or 617.246 (use of minors in sexual performance).

Jurisdiction

The juvenile court has original and exclusive jurisdiction in proceedings concerning children in need of protection or services (CHIPS), and specifically, any alleged acts of domestic child abuse. Proceedings involving domestic child abuse are given docket priority by the court. Minn. Stat. § 260C.101, subd. 3.

Relief

The juvenile code sets forth the procedures and relief in cases of domestic child abuse. The relief available in a domestic child abuse proceeding is similar to the relief available under the Domestic Abuse Act. Minn. Stat. §§ 260C.148; and 260C.201, subd. 3.

Child Exposed to Domestic Violence

Agency investigation

If a local welfare agency receives a report that alleges neglect, physical abuse, or sexual abuse of a child by a parent, guardian, caretaker, sibling, or person with a significant relationship to the child, the local welfare agency must immediately conduct a family assessment or investigation. When determining whether there is a need for child protective services, the local welfare agency must take into account:

  • the child’s sex and age, prior to reports of maltreatment, level of developmental functioning, and credibility;
  • alleged offender’s age and prior record of maltreatment and criminal charges and convictions;
  • other medical or secondary evidence of abuse; and
  • the existence of domestic abuse or substance abuse in the home. Minn. Stat. § 626.556, subd. 10.

Procedural Issues

Admissibility of child hearsay statements. If certain statutory requirements are met, an out-of- court statement that is not otherwise admissible by statute or rule of evidence is admissible in evidence in a (1) CHIPS proceeding; (2) neglected and in foster care proceeding; (3) domestic child abuse proceeding; or (4) termination of parental rights proceeding. An out-of-court statement includes a video, audio, or other recorded statement. Minn. Stat. § 260C.165.

Testimony of witnesses. A parent or the parent’s minor child may not be examined as to any communication made in confidence by the minor to the minor’s parent. A communication is confidential if made out of the presence of persons who are not members of the child’s immediate family living in the same household. This provision does not apply to:

  • a civil action or proceeding by one spouse against the other or by a parent or child against the other;
  • a proceeding to commit either the child or parent to whom the communication was made or to place the person or property or either under the control of another because of an alleged mental or physical condition;
  • a criminal action or proceeding in which the parent is charged with a crime committed against the person or property of the communicating child, the parent’s spouse, or a child of either the parent or the parent’s spouse;
  • a proceeding in which a child is charged with a crime or act of delinquency committed against the person or property of a parent or a child of a parent;
  • an action or proceeding for termination of parental rights; or
  • any other action or proceeding on a petition alleging child abuse, child neglect, abandonment, or nonsupport by a parent.

The statute provides for waiver of the privilege. Minn. Stat. § 595.02.


This and any related posts have been adopted from the Minnesota House of Representatives Research Department’s Information Brief, Domestic Abuse Laws in Minnesota – An Overview, written by legislative analyst Judith Zollar.

This post is also part of a series of posts on Domestic Abuse in Minnesota.


14 Applicable crimes include murder; manslaughter; certain assaults; kidnapping; depriving another of custodial or parental rights; soliciting, inducing, or promoting prostitution involving a minor; certain criminal sexual conduct; solicitation of a child to engage in sexual conduct; incest; malicious punishment of a child; neglect of a child; terroristic threats; and felony harassment or stalking.