All in the Family: Court reinforces nuanced approach to abuse

On Oct. 2, 2019, the Minnesota Supreme Court issued an opinion destined to challenge a lot of assumptions surrounding custody and parenting time issues in cases involving domestic abuse.

In Thornton v. Bosquez, Father and Mother met when Father, a lawyer, represented Mother in a personal injury lawsuit. Father and Mother became intimate after the attorney-client relationship ended, resulting in the birth of a child in 2014.

Mother and Father lived together until November 2015, when Father sought an award of physical and legal custody and petitioned for an Order for Protection on behalf of himself and the child. Wife agreed to the issuance of an OFP without a finding of abuse and the District Court dismissed the petition seeking protection for the child.

A guardian ad litem was appointed in the custody case and recommended that the parties share physical and legal custody.

After a two-day trial in January 2017, the District Court issued a detailed order. The referee found that the parties’ relationship was “dysfunctional and unhealthy,” with each alleging that the other had “serious behavioral problems.”

Father presented substantial evidence concerning Mother’s infliction of physical abuse upon him, including photographs of “scratch marks and bruises on his shoulders and arms, a cut on his arm from a knife, and an obvious bruise on the back of his neck.” The District Court opined that Mother committed acts of abuse, in addition to using threats of suicide, and a suicide attempt, to exert control over Father.

In considering the “nature and context of the domestic abuse,” as required by Minn. Stat. sec. 518.17, Subd. 1(b)(9), the District Court also found that Father was emotionally abusive toward Mother.

During the trial, Father admitted to calling Mother “extremely vulgar and degrading names and insults.” When Mother was pregnant, Father frequently denied being the father of the child and accused Mother of infidelity. The District Court found that Father “constant and daily” called Mother names such as “whore” and “slut” in the presence of the child.

In addition, the District Court found that Father engaged in “coercive control and manipulation” of Mother. For example, Father secretly photographed pages from Mother’s diary and threatened to use information about her foster care background, and the criminal history of her extended family members, to obtain custody of the child. He also “secretly dumped out [Mother’s] breastmilk on his unfounded suspicion that she was using alcohol.”

All said, the District Court found that Father’s behavior was “offensive and demeaning and contribute[d] to an unhealthy dynamic.” It further held that Father retained the “vast majority of power” over Mother and was on a “campaign to minimize the importance of [Mother’s] role in the child’s life.”

Despite the “toxic” nature of the parties’ relationship, the District Court found that the child suffered no abuse from either party and that the child thrived in the care of both parents. It held that both parties were “loving parents who can and do provide for all the child’s needs” and that the child was happy and healthy.

Because the District Court found that Mother committed domestic abuse upon Husband, it was required to assess whether the statutory presumption that “joint legal custody or joint physical custody is not in the best interests of the child” had been rebutted.

The District Court found that the presumption against joint legal custody was not overcome, in that “…the Court is concerned that Father will use joint legal custody as a weapon. Father has engaged in coercive control and manipulation of Mother throughout their relationship. Despite being a victim of domestic abuse, he has maintained the power and control in the parties’ relationship.”

However, the District Court found that the presumption against joint physical custody was overcome.

The District Court concluded that the child’s best interests would be served by awarding legal custody to Mother and joint physical custody to both parents.

Father appealed, arguing that the District Court misapplied the presumption against joint custody in cases involving domestic abuse. He suggested that the presumption should benefit the victim of domestic abuse and, as a result, Father should have been awarded sole physical and legal custody.

The Minnesota Court of Appeals rejected Husband’s arguments and affirmed, noting that the statutory language “does not necessarily favor one party over the other party. The presumption simply expresses a preference for sole custody with one parent or the other, unless the presumption has been rebutted.”

The Minnesota Supreme Court granted Father’s petition for review.

Justice Chutich, writing for a unanimous Court, began with a summary of the law concerning custody cases. She noted that the child’s best interests are “paramount,” and summarized the 12 best interest factors and nine provisions governing the application of those factors.

The Supreme Court also reiterated that deference is given “to the district court’s opportunity to evaluate witness credibility,” affording the District Court “great leeway” in making a custody decision.

Father argued that the burden of proof to rebut the presumption of sole custody in cases involving domestic abuse rests with the abuser and, therefore, the “court must award sole custody” to the victim of domestic abuse if the presumption is not rebutted.

The Minnesota Supreme Court disagreed, opining that the relevant statute “contains no language stating that the presumption operates for or against any particular party. No reference is made to a party at all. The presumption does not mandate that a specific party receive sole custody if the presumption goes unrebutted; nor does it expressly impose on any party the burden of producing evidence to rebut the presumption.”

Of key distinction, the Supreme Court noted “[r]ather than impose a presumption for or against a specific custodian [the relevant statute] creates a rebuttable presumption against a custodial arrangement.” (Emphasis in original).

In support of that conclusion, Justice Chutich referenced the fact that domestic abuse is “one factor” among the 12 statutory best interest factors and that no court may “use one factor to the exclusion of all others.”

She also reiterated that other provisions of the custody statute, such as directing certain presumptions against a party with a criminal record, demonstrates that the Legislature was capable of directing the same concerning domestic abusers – if intended.

The Supreme Court also concluded that neither party bears the burden of production or persuasion concerning the best interests of a child. No such obligation is referenced within the relevant statute. Justice Chutich opined that “it is crucial that the court weigh all evidence of the child’s best interests regardless of the source of the evidence.”

In short, the Supreme Court found that the District Court did not abuse its discretion in awarding Mother sole legal custody and the parties joint physical custody, despite its finding that Mother engaged in acts of domestic abuse.

The Thornton decision marks a turning point in the traditional way of thinking about custody disputes involving parents with a history of domestic violence. The relatively recent revisions to the best interest factors are finally being tested at the appellate level.

Thornton mandates that a more nuanced approach to the issue of domestic violence must be undertaken by decisionmakers and custody evaluators. The recently refined “nature and context” of acts of domestic abuse may well lead to a result that no family law attorney would have predicted even five years ago.

Sole legal custody but joint physical custody? An award of joint physical custody in a case involving domestic abuse? A perpetrator of domestic abuse being awarded sole legal custody? Domestic abuse characterized as the lesser of two evils?

We’re not suggesting that the Thornton result was right or wrong. Instead, it is apparent that some old assumptions have taken their last breath.