If the respondent in an OP hearing denies allegations, but allows an OP to go into effect, can the petitioner request a hearing for findings? If so, what are the pros and cons of doing so for the petitioner? Also, will whether an OP has findings or not affect its relevance in a custody hearing? How?
Criminal Defense Attorney
The answer depends on many things including the nature of the allegations made, and wether the parties have any children in common.
A finding that domestic abuse has occurred can affect a custody case if the parties have a child in common. Minnesota Statutes state that the Court must use as a rebuttable presumption that joint legal or 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 such a case, if the allegations seem to be supportable, it may be wise for a Respondent to agree to a restraining order without findings of abuse rather than risk the court making such a finding.
Where there are no children in common, an Order for Protection with or without findings has the same impact on a person's record. Moreover, the order in either case is enforceable by criminal charges if violated.
If the Respondent agrees to the Order without Findings, the Petitioner cannot compel the court to hold a hearing or to make findings.
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4 lawyers agree
Family Law Attorney
This is a half-measure that I sometime recommend to clients facing this issue. It is, unfortunately, common for one party in a divorce/custody situation to file for an OFP, alleging "abuse." These are typically very weak cases - cops had never been called, no objective evidence like doctor's reports, etc. - and they are used to gain an advantage in the custody fight. In my opinion, any attorney who advocates this kind of "tactical" nonsense (filing an OFP for their client to gain the upper hand) should be disbarred, but that's my own opinion. To avoid the issue, however, I sometimes offer the entry of an OFP without any factual findings and leaving any custody orders via the OFP open to amendment in the main case. When this happens, I then fight tooth-and-nail for my clients during the custody case, reminding the court that, since there were no findings of abuse, they really can't use the existence of an OFP against my client. To date, I'd have to say I've been fairly successful using this - it doesn't always work, but it frequently does. Frankly, it depends on the judge hearing the case. Here in outstate Minnesota, may times it's the same judge hearing both the OFP and the custody cases.
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Employment / Labor Attorney
I agree with what the previous attorney wrote and would add that one downside for the petitioner to having a hearing is the petitioner might lose the hearing and not get an order for protection at all. The upside for the respondent is, if you don't think the petitioner can prove they should get an order for protection then you could win the hearing and not be limited by an order for protection, which, if violated, can result in criminal charges. Having an order for protection against you can create a lot of problems so you typically don't want to agree to it unless you truly believe the petitioner would prevail in a hearing.
3 lawyers agree
Family Law Attorney
Hello. Your questions are terrific, but, providing a general response would require tremendous detail. The petitioner and the respondent each have their own competing interests. There are numerous pros and cons to be addressed as possible considerations. Yes, an Order for Protection (OFP) that has findings or lacks findings may matter with regard to a custody dispute. If you are facing such a legal issue, do turn to your own attorney for detailed legal counsel, as she/he should know your personal issues and the facts as well as anyone.
Order for Protection / OFP Law, Child Custody & Parenting Time Law, Parenting Time Expeditor, Family Law Mediator, Family Law
In general, if a court finds that abuse has occurred following a contested hearing, that will impact a child custody case as one of the factors a court must consider is whether abuse has occurred. From a practical standpoint, very few judicial officers will allow the Petitioner to demand a hearing if the Respondent is willing to stipulate to the issuance of an OFP. Especially in counties where cases are blocked to a judge or referee, it may not be wise to make a demand for a hearing if you are receiving the order you requested. You will still have the right to show that domestic violence occurred in the custody matter.
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