The reasons behind a person’s decision to divorce can run the gamut from infidelity to incompatibility to substance abuse, but one of the most disturbing and tragic justifications for ending a marriage are allegations of domestic violence. In situations where domestic violence is present, even mentioning the possibility of divorce may provoke an attack, so victims are often forced to makes plans for divorce in secret. In addition, they must worry about being forced out of the family home when the divorce petition is served. All of this creates a large amount of fear and stress in a situation that already brings its own share of overwhelming emotions. The Michigan legislature recognizes the precarious circumstances victims of domestic violence live with on a daily basis, and developed laws to provide them additional protections during divorce. In fact, during the most recent legislative session it enacted several new laws aimed at relieving some of the burdens faced by domestic violence victims seeking to leave their spouses. A discussion of these new laws, as well as a general discussion of how the law treats domestic violence in divorce, will follow below.
Domestic Violence and Divorce Generally
The biggest impact of domestic violence in divorce is seen in the areas of child custody and parenting time. The basic premise for all child custody decisions is that it is in the best interests of the child to have a continuing and close relationship with both parents. This concept of the best interests of the child is the main method used to decide child custody and parenting time. Basically, to determine what is in the best interests of the child, a court looks at a number of factors, including:
- the emotional ties between the child and parent;
- a parent’s ability to provide for the child’s essential needs;
- the moral fitness of the parent; and
- the willingness and ability of each parent to encourage and promote a close relationship with the other.
All factors are weighed individually, and a judge uses them to evaluate each parent against the other to determine who can provide a better home. Because domestic violence would only be one factor among many others, this alone is no guarantee the abusive spouse would be blocked from seeing his/her child. This possibility is supported by a legal preference for the child to have continuing contact with both parents. Parenting time will only be limited or denied if it is possible to demonstrate the child’s physical, mental or emotional wellbeing would be endangered by spending time with a parent. A court could order supervised visitation that would require the presence of a third party in order for the parent to see the child, but this option is usually temporary.
The new laws enacted by the legislature will help domestic violence victims gain a little more consideration in decisions related to divorce. The first piece of legislation adds that when looking at the child’s best interest and the existence of domestic violence, it should be considered regardless of whether the child witnessed or was a victim of the violence. The second recent amendment to the law relates to factors used to determine parenting time. There is now an additional factor that states a parent’s actions to protect a child from abuse or domestic violence should not be used as evidence the parent was attempting to conceal the child from the other parent.
Consult a Divorce Attorney
Domestic violence is a serious issue that can make divorce more complex. If you are dealing with an abusive spouse and want to get divorced, it is best to consult with a divorce attorney who can advise you of the all the available legal options to protect yourself and your child. The Clinton Township law firm of Iafrate & Salassa, P.C. will work to get you the protection you need. Contact us for a free consultation.