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Whether domestic abuse, as defined in section 518B.01, has occurred in the parents’ or either parent’s household or relationship, and 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, is a factor the court must consider and evaluate in determining custody and parenting time.
The court must make detailed findings on each of the best-interest factors based on the evidence presented and explain how each factor led to its conclusions and to the determination of custody and parenting time.
What counts as domestic abuse under Minnesota law
Under section 518B.01, domestic abuse means, if committed against a family or household member by a family or household member: physical harm, bodily injury, or assault; the infliction of fear of imminent physical harm, bodily injury, or assault; or terroristic threats within the meaning of section 609.713, subdivision 1.
Family or household members for purposes of the Domestic Abuse Act include persons who have a child in common regardless of whether they have been married or have lived together at any time.
Source: Minn. Stat. § 518B.01
The joint-custody presumption when abuse has occurred
The court shall use a rebuttable presumption that joint legal custody or joint physical custody is not in the best interests of the child if domestic abuse, as defined in section 518B.01, has occurred between the parents.
In evaluating best interests, the court shall except in cases in which domestic abuse as described in clause (4) has occurred, consider the disposition of each parent to support the child’s relationship with the other parent and to encourage and permit frequent and continuing contact between the child and the other parent.
Parenting time: when the court may restrict or deny it
The court may not restrict parenting time unless it finds that parenting time is likely to endanger the child’s physical or emotional health or impair the child’s emotional development, or that the parent has chronically and unreasonably failed to comply with court-ordered parenting time.
If the court finds, after a hearing, that parenting time with a parent is likely to endanger the child’s physical, mental, or emotional health or safety or impair the child’s emotional development, the court shall restrict parenting time with that parent as to time, place, duration, or supervision and may deny parenting time entirely, as the circumstances warrant.
If a parent requests supervised parenting time and an order for protection under chapter 518B is in effect against the other parent to protect the parent with whom the child resides or the child, the judge or judicial officer must consider the order for protection in making a decision regarding parenting time.
Proof of an unwarranted denial of or interference with duly established parenting time may constitute contempt of court and may be sufficient cause for reversal of custody.
Source: Minn. Stat. § 518.175
Parenting time in temporary and ex parte orders
A temporary order in a custody or dissolution proceeding may not deny parenting time to a parent unless the court finds that the parenting time is likely to cause physical or emotional harm to the child.
An ex parte restraining order in a custody or dissolution proceeding may not deny parenting time to either party or grant custody of the minor children to either party except upon a finding by the court of immediate danger of physical harm to the minor children of the parties.
Source: Minn. Stat. § 518.131
Orders for protection and their effect on parenting time
Under section 518B.01, an order for protection may award temporary custody or establish temporary parenting time with regard to minor children of the parties on a basis which gives primary consideration to the safety of the victim and the children.
If the court finds that the safety of the victim or the children will be jeopardized by unsupervised or unrestricted parenting time, the court shall condition or restrict parenting time as to time, place, duration, or supervision, or deny parenting time entirely, as needed to guard the safety of the victim and the children.
Duration:
Any relief granted by an order for protection shall be for a period not to exceed two years, except when the court determines a longer period is appropriate.
An order for protection may be extended for a period of up to 50 years if the respondent has violated a prior or existing order for protection on two or more occasions, or if the petitioner has had two or more orders for protection in effect against the same respondent.
Firearms prohibition:
An order for protection granting relief shall prohibit the abusing party from possessing firearms for the length the order is in effect if the order restrains the abusing party from harassing, stalking, or threatening the petitioner and includes a finding that the abusing party represents a credible threat to the physical safety of the petitioner.
Source: Minn. Stat. § 518B.01
Criminal convictions and the burden-of-proof shift
Section 518.179 applies to convictions for assault in the first, second, or third degree under sections 609.221, 609.222, or 609.223, and domestic assault by strangulation under section 609.2247, among other listed offenses.
If a parent seeking child custody or parenting time has been convicted of domestic assault by strangulation under section 609.2247, and the victim of the crime was a family or household member, the person seeking custody or parenting time has the burden to prove by clear and convincing evidence that custody or parenting time by that person is in the best interests of the child.
A guardian ad litem must be appointed in any case where section 518.179 applies.
Source: Minn. Stat. § 518.179
Domestic assault: the underlying charge and its firearm consequence
Whoever commits domestic assault against a family or household member as defined in section 518B.01, subdivision 2, by committing an act with intent to cause fear in another of immediate bodily harm or death, or by intentionally inflicting or attempting to inflict bodily harm upon another, is guilty of a misdemeanor.
A person convicted of domestic assault under section 609.2242 where the victim was a family or household member is prohibited from possessing a firearm for three years from the date of conviction, unless the court orders a longer prohibition, and violating this prohibition is a gross misdemeanor.
Source: Minn. Stat. § 609.2242
The domestic abuse no contact order (DANCO) and custody proceedings
A domestic abuse no contact order is an order issued by a court against a defendant in a criminal proceeding or a juvenile offender in a delinquency proceeding for domestic abuse as defined in section 518B.01, subdivision 2.
A domestic abuse no contact order (DANCO) may be issued as a pretrial order before final disposition of the underlying criminal case or as a postconviction probationary order, and is independent of any condition of pretrial release or probation imposed on the defendant.
Questions people ask about custody and domestic abuse in Minnesota
Does a history of domestic abuse automatically change who gets custody?
The court shall use a rebuttable presumption that joint legal custody or joint physical custody is not in the best interests of the child if domestic abuse, as defined in section 518B.01, has occurred between the parents.
What does the court look at when evaluating abuse in a custody case?
Whether domestic abuse, as defined in section 518B.01, has occurred in the parents’ or either parent’s household or relationship, and 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, is a factor the court must consider and evaluate in determining custody and parenting time.
Can the court write specific limits into a parenting time order?
If the court finds that the safety of the victim or the children will be jeopardized by unsupervised or unrestricted parenting time, the court shall condition or restrict parenting time as to time, place, duration, or supervision, or deny parenting time entirely, as needed to guard the safety of the victim and the children.
Does a conviction automatically bar a parent from getting custody?
If a parent seeking child custody or parenting time has been convicted of domestic assault by strangulation under section 609.2247, and the victim of the crime was a family or household member, the person seeking custody or parenting time has the burden to prove by clear and convincing evidence that custody or parenting time by that person is in the best interests of the child.
Is a guardian ad litem required when a parent has a qualifying conviction?
A guardian ad litem must be appointed in any case where section 518.179 applies.
What happens to a domestic abuse no contact order while a custody case is pending?
A domestic abuse no contact order (DANCO) may be issued as a pretrial order before final disposition of the underlying criminal case or as a postconviction probationary order, and is independent of any condition of pretrial release or probation imposed on the defendant.
Can a parent lose custody for wrongly blocking the other parent’s time?
Proof of an unwarranted denial of or interference with duly established parenting time may constitute contempt of court and may be sufficient cause for reversal of custody.
How long does an order for protection last?
Any relief granted by an order for protection shall be for a period not to exceed two years, except when the court determines a longer period is appropriate. An order for protection may be extended for a period of up to 50 years if the respondent has violated a prior or existing order for protection on two or more occasions, or if the petitioner has had two or more orders for protection in effect against the same respondent.
Talk with Martine Law about custody and domestic abuse in Minnesota
If domestic abuse is part of your custody situation, getting legal guidance early can shape the outcome. Martine Law handles custody matters across Minnesota.
Call for a confidential consultation, or fill out the contact form on this page with your name, phone number, and a short description of your situation, and we will follow up promptly.
