Fighting False Allegations of Abuse

Posted over 5 years ago. Applies to Minnesota, 1 helpful vote

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Consequences of Abuse Claims

Allegations of domestic abuse may have both civil and criminal consequences. In the civil context, an allegation of abuse may result in domestic abuse restraining orders, often called "Protective Orders." They may also have a criminal context related to assault or battery. The significance of a judicial finding that domestic abuse has occurred is profound. In the context of criminal cases, incarceration or fines may be imposed and "no contact" orders entered which may include requiring the perpetrator to vacate the family residence or to have no contact between a parent and their children. In the civil context, including divorce and custody proceedings, the consequences are equally severe:

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Presumption for Custody

Most states carry a statutory presumption that in the event domestic abuse has occurred, the perpetrator of that abuse should not be awarded physical placement or physical custody.

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No Mediation of Family Law cases

It is also often presumed that where domestic abuse has occurred, mediation for family law disputes should not be required.

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Restraints on abusive behavior

A domestic abuse restraining order will include a restraint precluding the defendant from committing any acts of domestic abuse against the victim. Although this does not appear objectionable, it exposes a person subject to such an order to criminal charges should an allegation of a violation occur. In other words, it puts that operson on the defensive.

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No Contact Orders

Where domestic abuse has been found to occur, the Court will enter a restraining order prohibiting that person from contacting the victim directly or indirectly, whether through letters, e-mail, phone calls or messages through third parties. Any violation of those restraining provisions, regardless of whether the contact is initiated by the victim or not, is a criminal violation which may result in incarceration.

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Exclusion from Residence

As a corollary to the no contact provisions of a domestic abuse restraining order, eth defendant is also often excluded from the family residence including any property within that residence regardless of whether the residence or household is jointly or solely owned or leased by the parties. Often the order will make allowances for law enforcement officer to accompany a party to the residence to supervise the removal of limited personal belongings.

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Interference with Parenting

A domestic abuse restraining order will often also restrict the defendant's contact with children who may have been exposed to the domestic abuse. This may result in no parenting time or supervised parenting time.

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Anger Management and treatment required

The Court may also require a defendant to participate in an anger management program, chemical dependency treatment and other therapies as a condition of normalizing contact with his children. that treatment can be used in subsequent proceedings to support the contention that abuse has occurred.

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Restriction of Civil Liberties

Additionally, the entry of a domestic abuse restraining order may affect other civil liberties. For example, under the federal "Brady Bill" a perpetrator of domestic abuse is precluded from owning or possessing a firearm for any purpose.

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Immigration and Deportation

A conviction or factual finding that abuse has occurred can affect a person's imnmigration status. It is considered a crime of moral turpitude. If it is punishable by more than one year in jail,. it may lead to removal proceedings. Even if there is no conviction and the offense is not punishable by more than a year in jail, a finding of abuse may prevent a person who has traveled out of the country from reentering even if they have a valid U.S. visa. Moroever, two or more convictions or findings of abuse where the offense does not have a potential penalty of more than a year in jail, may form a basis for deportation even for those who hold a valid visa.

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Aggressive Defense

Clearly, when false allegations of abuse are made, the stakes are very high. Ironically, this is contrasted by the low burden of proof necessary for those seeking civil restraining orders involving domestic abuse and the abbreviated manner in which such hearings are generally held. There is no silver bullet to prevent you from being a victim of false allegations of abuse. The threat will continue to exist so long as the present definitions of abuse and legal standards of proof remain in place without additional procedural protections. As a result, it is extremely important to be vigilant for the warning signs that allegations of abuse may be made and, if they are made, being aggressively proactive in contesting them.

Additional Resources

Author: Maury D. Beaulier is a recognized leader in family law and criminal defense. He is a sought after speaker and has appeared on National programs on a myriad of family law and father’s rights issues. He can be reached from his website at http://www.divorceprofessionals.com

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