Domestic Abuse

Katz, Manka, Teplinsky, Graves & Sobol, Ltd.

Divorce with Dignity ◦ Defending Rights for Family Law Clients for 40 Years

What is Domestic Abuse

Domestic abuse occurs when a family member attempts to physically or psychologically dominate or harm the other, through direct physical assault or through the infliction of fear of imminent physical harm, bodily injury or assault. In Minnesota, family or household members are defined as spouses and former spouses; parents and children; persons who are related by blood; persons who are presently residing together or who have resided together in the past; persons who have a child in common, regardless of whether they have been married or have lived together at any time; a man and woman, if the woman is pregnant and the man is alleged the father, regardless of whether they have been married or have lived together at any time; and persons involved in a significant romantic or sexual relationship.

Domestic violence occurs in all cultures; people of all races, ethnicities, religions, and classes can be perpetrators or victims of domestic violence. Domestic violence is perpetrated by, and on, both men and women, and occurs in same-sex and opposite-sex relationships. Awareness and documentation of domestic violence differs from state to state, and even county to county and city to city in the State of Minnesota. It is estimated that only about a third of cases of domestic violence are actually reported in the United States.

Domestic abuse is often a learned pattern of behavior, passed on from parent to child. Abuse often follows established patterns, with many victims experiencing similar patterns of control, isolation and abuse. Part of this pattern involves a cycle, with ever increasing tensions culminating in threats and physical violence, followed by apologies, gifts, promises of change and forgiveness – only to find shortly thereafter the cycle beginning yet again. Often times, victim cannot believe the abuse is happening to them, and are ashamed to report the abuse they are suffering to others. Many times, the abusers will attempt to cover their control and abuse, by isolating the victims, cutting them off from family and friends; sometimes moving to remote and isolated locations.

Minnesota law provides for swift and extraordinary relief to protect victims

Minnesota has a process aimed at quickly providing relief to victims of domestic abuse. A person who has been physically hurt or threatened with harm may obtain, without notice to the other party, an ex parte Order for Protection, which, if signed by a judge will direct the sheriff of the county issuing the order to immediately remove the alleged abuser from the home – usually with no warning, and usually only affording the alleged abuser only a few minutes to gather some personal belongings. The ex parte Order may also provide for temporary custody of any children of the parties to the alleged victim, pending hearing.

Minnesota Law requires an initial hearing before the court within five days of service of the ex parte Order for Protection. At the hearing, the alleged abuser, called the respondent, may admit the allegations; agree to an order without admitting or denying the allegations; agree to an order while denying the allegations; or deny outright the allegations and request a full evidentiary hearing, where both the alleged victim and alleged abuser, together with other witnesses, if necessary, are allowed to testify. This evidentiary hearing is required to take place within fourteen days of the service of the ex parte Order, unless the alleged abuser agrees to an extension of time for the hearing.

At the evidentiary hearing, the burden of proving the abuse is on the alleged victim, called the petitioner, who must establish either physical harm or that the respondent made threats causing the petitioner to fear imminent harm, bodily injury or assault. In certain instances, this burden may be easy to establish – especially if there is physical evidence of an assault. More difficult to establish are cases where the alleged abuser threatened imminent harm, such as by pointing a finger at the victim and making a statement causing fear of imminent harm. Such cases will require the judge to determine which party’s testimony is more credible.

If the Court finds that domestic abuse has occurred, an Order for Protection is issued, valid for up to a year and occasionally longer. The Order may also make provisions for temporary custody and temporary economic relief. Once an Order has issued, violation of the order may result in the respondent's being immediately arrested and jailed. Certain violations of an order for protection may result in a felony conviction, imprisonment of up to five years and a fine of up to $10,000. A respondent to a domestic abuse proceeding may not possess firearms while the order is in force. Once an order for protection has been issued, the petitioner may request it be extended beyond its term, either by establishing violation of the order during its’ term; by establishing reasonable fear of harm; by establishing that the respondent has stalked the petitioner; or, by establishing that the respondent has been incarcerated and is about to be or has recently been released from incarceration.

Potential misuse of the domestic abuse process

Because the domestic abuse process provides for swift and immediate protection of victims of abuse with no advance notice to the other party, occasionally, the process is misused by individuals who embellish or fabricate claims of abuse. This is done to quickly remove a party from their residence, to quickly obtain temporary custody, most often with the goal of obtaining a real or perceived advantage in a pending or planned divorce action. Unfortunately, these false allegations of abuse undermine the process, with the effect of making it more difficult for true victims of abuse to obtain the relief they are entitled to.

Importance of having experienced counsel

Whether you are a victim or have been accused of abuse, it is important to have experienced counsel at your side. The attorneys at Katz, Manka, Teplinsky, Graves & Sobol, Ltd. are extremely skilled at both protecting victims of abuse as well as those accused of abuse. We have successfully protected victims of domestic abuse; in one instance successfully pursuing the matter to the Minnesota Supreme Court. One of our partners is on the board of directors of Cornerstone, the domestic abuse advocacy service providing shelter, counseling and advocacy assistance to victims of abuse and their families in the cities of Bloomington, Richfield, Eden Prairie, Edina and St. Louis Park.

The lawyers of Katz, Manka, Teplinsky, Graves & Sobol, Ltd. similarly take a very dim view of individuals misusing the domestic abuse process, and have successfully achieved dismissals of ex parte Orders for Protection obtained under false pretenses.

It is important to have skilled counsel by your side, if a victim, to make sure you and your children are safe and protected; if accused, to make sure your rights are protected. The lawyers at Katz, Manka, Teplinsky, Graves & Sobol, Ltd. understand domestic abuse, and we are zealous advocates for our clients.