Deciding to divorce takes careful thought and planning, but in some cases it takes true acts of courage to initiate divorce when one spouse is the victim of domestic violence. Recognizing the obstacles some victims of domestic violence experience when transitioning away from the abusive spouse, the Indianapolis Motor Speedway sponsored a fundraising drive this past spring to support the Indiana Coalition Against Domestic Violence. Lawmakers, taking into account the safety and welfare of the victims of alleged domestic violence and any minor children, enacted laws that affect courts’ decisions in divorce and paternity proceedings. A brief overview of how to obtain a protective order against a person accused of domestic violence will be discussed below, along with how domestic violence issues affect custody decisions in divorce and paternity cases.

Protective Orders

Protective orders are intended to prohibit contact between the alleged victim of domestic violence and the accused, and are essentially a method used by courts to protect victims and any minor children from experiencing future acts of violence. The victim or a parent/guardian of a minor child may petition for a protective order against a person accused of domestic and/or family violence, stalking, or a sex offense. Once an order is issued, the person named in it is not permitted to stay at the same residence as the petitioner, even if the petitioner invites the person to remain. Violation of the protective order is punishable by jail time, prison time, or fines. A court may issue a protective order without prior notice or an opportunity to appear by the accused, referred to as an ex parte order for protection, but a hearing must occur within 30 days of issuance where the accused has an opportunity to present evidence challenging the allegations.

Additionally, a court may mandate the following in an ex parte protective order:

• Prohibiting the accused from threatening to or carrying out instances of domestic or family violence;
• Prohibiting the accused from contacting the alleged victim directly or indirectly;
• Removing and prohibiting the accused from the victim’s residence; and
• Ordering the accused to stay away from the victim’s home, work, school or other places frequently visited.

Once notice is provided to the accused and a hearing is held, regardless of whether the accused actually appears, the court is given the additional authority to order supervised visitations with minor children or the complete elimination of visitation and the payment of certain fees and expenses.

Divorce

When a court decides child custody issues, it must consider a number of factors to determine what is in the best interest of the child. One of the factors the court specifically looks at is whether a parent displayed a pattern of domestic or family violence, which, if found, will almost certainly exclude that parent from receiving custody of a child. If a noncustodial parent is found guilty of a crime related to domestic or family violence, and that crime was witnessed or heard by the parent’s child, there is a presumption the non-custodial parent will be subject to supervised visitation for at least one year, but not more than two. To receive unsupervised visitation the court has the option of requiring the parent complete a batterer’s intervention program.

Paternity

As in divorce proceedings, paternity petitions are subject to the same provisions governing visitation by non-custodial parents found guilty of domestic or family violence crimes, which means supervised visitation for at least one year or the completion of a batterer’s intervention program to receive unsupervised visits.

Find an Attorney

If you are going through a divorce or paternity case and believe the other parent is a perpetrator of domestic violence, seeking the advice of a lawyer on your options to prevent that parent from interacting with your child is the best way to ensure your child is well protected. Attorney Christopher L. Arrington, P.C., serving clients in Avon, Plainsfield, Brownsburg, and Danville, is experienced in child custody issues and ready to help. Call today to schedule your confidential consultation.