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21
January

The Effect of Domestic Violence on Divorce and Child Custody and Support

By Jeffrey M. Salassa

justice statue and wedding rings on the desk of a Clinton Township domestic violence attorney

Filing for divorce is rarely an easy decision, but the addition of domestic violence to an already emotional equation can make filing a truly frightening experience for many victims.

Lawmakers recognize that domestic violence victims seeking divorce or protection from their attackers need special consideration when it comes to issues like mediation and child custody. A recent article in The Washington Times looks at efforts to reform divorce laws throughout the country, with a particular focus on reforms being considered in Michigan, which could be detrimental to individuals living with domestic abusers if applied universally. Currently, lawmakers and divorce reform advocates are considering the possibility of changing laws to promote reconciliation instead of divorce by instituting a waiting period of one to two years before a divorce may be granted and requiring premarital counseling. While these changes might be reasonable for the average couple, those living under the threat of domestic violence would probably be less likely to file for divorce and consequently subject themselves and their children to the possibility of further violence. These proposed changes, however, are in the earliest stages of negotiation and do not reflect the current legal approach to divorce in Michigan. An overview of the special provisions made for domestic violence victims and their children will appear below to inform those affected by this issue.

Alternative Dispute Resolution/Arbitration

Court-ordered alternative dispute resolution (ADR) is fairly common in domestic relations cases and is promoted as a more efficient, less expensive, way to resolve disputes than the traditional judicial forum. However, there are specific exceptions in place for Arbitration where there is evidence of domestic violence in a relationship. Generally, Arbitration is not recommended for cases involving domestic violence and will only be allowed to proceed if both parties file a consent acknowledging they are aware of the following facts:

  • Arbitration is voluntary;
  • Arbitration is binding, with limited right to appeal;
  • The court will enforce the arbiter’s decision; and
  • The rules of evidence do not apply, among others not listed here.

In order for the waiver to be effective, the parties have to be represented by their attorneys throughout the case, including arbitration, and a court must determine that the waiver was informed and voluntary.

In addition, for divorce or child custody matters where there is involvement by a Friend of the Court (FOC) representative, the FOC is required to provide parents access to alternative dispute resolution (ADR) to resolve disputes over child custody or parenting time. This process has specific screening procedures for domestic violence and related protection orders so that any ADR process is handled differently to protect the abused and children of the abused.

Child Custody and Support

The largest driving factor in child custody decisions is what is in the best interest of the child and Michigan law specifically notes that when children are exposed to domestic violence, as victims or witnesses, courts tend to be against awarding custody to the abusive parent. Further, if a person uses domestic violence to prevent an individual from filing a petition for child support, the court will order retroactive support from the time period the violence or intimidation was first used to delay the petition instead of the date the petition was filed.

Speak with a Michigan Divorce Attorney

Domestic violence is a serious issue that should be addressed as soon as possible. If you are seeking a divorce, child custody or support from a domestic violence abuser, it is important to retain an experienced family law attorney to ensure that you and your family are protected. The Clinton Township Law Firm of Iafrate & Salassa, P.C. represents clients in domestic violence matters. Contact them to schedule a free consultation.

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