By Jason Brown and Cynthia Brown
Dolan Media Newswires
With the enactment of some new custody and parenting-time statutes across the U.S., judges and custody evaluators are compelled to examine acts of domestic abuse in a new light.
Rather than simply asking whether acts of domestic abuse have occurred among parents, the “nature and context” of each party’s actions must be analyzed.
In our experience, the vast majority of Petitions for an Order for Protection occur before the initiation of a divorce or paternity action. Procedurally, the stage is immediately set for a showdown concerning who did what and to whom. The outcome can have devastating — and sometimes unforeseen — effects on one’s opportunity to be awarded custody of minor children, remain employed, and possess a firearm.
Naturally, safety is the paramount concern for a parent seeking an order for protection, also known as an OFP. The party accused of abusing the other is generally afforded a few narrow options for settlement: agree to have an order issue with findings (some actually do), or can agree to have an order issue without findings (the far more common alternative).
At first glance, an order without findings may seem like an attractive way to resolve matters. After all, a finding of domestic abuse can have dire consequences in a custody dispute. However, it is important to understand that the issue is still likely to be litigated within the divorce or paternity matter. Moreover, an order without findings carries the consequences of an order with findings, insofar as firearms possession and employers are concerned.
Is an order without findings really that valuable?
Under the new “nature and context” statute in Minnesota, for example, the respondent may be motivated to go to an evidentiary hearing. However, is it worth the risk of having an order issue? Risk assessment in the context of a domestic-abuse case is often difficult. From an evidentiary standpoint, most cases involve nothing more than “he said, she said.”
What if the accused will be terminated from employment if an order (with or without findings) issues? What if he or she is the sole breadwinner for the family? Is spousal maintenance or child support likely to be ordered? Paid? Will house payments be made? Cars kept? Savings dwindled?
The traditional settlement alternatives for a domestic abuse case aren’t very helpful.
Even if the parties want to work out some sort of agreement short of the issuance of an OFP, they are often precluded from having a binding order issue because judges often feel compelled either to issue the order or dismiss the case entirely.
What litigants often need is an alternate forum.
Given that the parties to an OFP generally have a familial relationship, family court is an obvious place to turn to.
As soon as you are retained on the OFP (whether by a petitioner or respondent), we suggest filing a dissolution — or paternity — action in family court. Having an alternate forum at the time of the evidentiary hearing in the domestic-abuse proceeding provides space for the court to enter an order outside of the confines of an order for protection.
While settlement is not an option in every domestic-abuse situation (some are far more serious than others), what most petitioners really seek is an order precluding contact. They want time and space from the alleged aggressor.
We find most respondents don’t object to that. A no-contact provision can be easily incorporated into a family court’s order.
But what happens if the family no-contact order is violated?
The petitioner in an OFP proceeding is unlikely to reach a settlement calling for the dismissal of the Order for Protection unless he or she is convinced that there is substantial incentive for the respondent to comply with the family no-contact order.
We find that two things work particularly well. First, the family no-contact order can specifically provide for the dismissal of the OFP without prejudice, and allow the petitioner to re-file in the event of a violation.
Second, the alleged aggressor may agree to pay all fees and costs associated with the petitioner’s re-filing of the OFP.
Once the petitioner is confident that contact will be limited, he or she is likely to deal with other key issues not normally addressed in great detail in an OFP case. The same is true of the accused, knowing that the concern of having an Order for Protection issue against him or her is satisfied. The parties can discuss temporary parenting time, transportation responsibilities and support issues.
Parents engaged in settlement discussions will often look to mend familial relationships. They begin to explore mental health alternatives, such as counseling for the parties, counseling for the children, anger management, co-parenting classes, chemical-use assessments or domestic-abuse programming. Any, or all, of the foregoing can be stipulated as a condition of parenting time, or continued dismissal of the OFP.
The parties can also look toward the best interest of the child(ren). A guardian ad litem may be appointed to investigate the underlying allegations, participate in a subsequent early neutral evaluation and make recommendations in the family court file. That may be particularly helpful in terms of defining the nature and context of the alleged abuse for a custody evaluator, or family court judge, and placing adequate weight on the parties’ history in that regard.
Finally, we often see established a framework for ongoing communication between the parties. Most are willing to agree to limit their communication to email and to matters pertaining to the children. If an emergency arises, text messages may be used. The parties may also agree to use a mutually trusted third-party neutral to convey messages to one another.
Of course, there are some who wish to allow additional contact for purposes of settlement discussions, as well as court appearances, in the family-court file. For those who question whether divorce is really the solution to the parties’ troubles, an agreement can be reached that communication may continue if it is directed toward reconciliation. Keep in mind that a family court file can always be placed on inactive status if things are moving along too quickly for your client.
The OFP process, in current form, provides a limited number of settlement alternatives. Opening a family court file before an evidentiary hearing provides a forum for the parties to enter into an agreement that deals with the nuances of the situation.
It’s better to work with a scalpel than a hatchet when so much is at risk.