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Modern Family: More scrutiny is necessary in abuse cases

Jason Brown

Jason Brown

On Nov. 28, the Minnesota Court of Appeals reversed a district court’s decision to amend an order for protection without any record evidence in support of modification. Judge Jeanne M. Cochran’s opinion serves as a rallying cry in an era in which the actions of abusers are often disregarded.

In In re the Matter of Kinney, Mother and Father were married in 2009. They have two minor children together.

In July 2021, Mother petitioned for an order for protection against Father on behalf of herself and the parties’ children. She alleged Husband threatened her by smashing a plate during an argument, concurrently stating: “Do you want to get hit?”

Mother also alleged Father had physically and verbally abused the children for many years. Among other allegations, Mother claimed Husband: (1) threw their son on his bed and threatened to punch him; (2) pinned their son down; and (3) slapped their daughter several times for bothering him.

Father agreed to resolve matters short of a hearing. The district court issued a stipulated order for protection without findings in August 2021. The OFP prohibited Father from contacting Mother, except to discuss matters involving the minor children. The OFP further limited Father’s parenting time to one supervised in-person visit, and three virtual visits, per week.

In December 2021, Father moved to modify the OFP. He asked for unsupervised parenting time as part of his request. In his filing, Father asserted the motion to modify was “based on the files, recording, Affidavit in Support of Motion and proceedings within.”

However, Father did not file an affidavit (or any other documents) in the OFP court file in support of his request. Instead, he filed his papers in the parties’ dissolution action in conjunction with a joint motion.

The hearing was limited to arguments from counsel for both parties. No witnesses testified. Father’s counsel referenced the affidavits filed in the dissolution in conjunction with the motion to modify the OFP, but those documents were not made part of the OFP record. Mother’s counsel argued that Father’s counsel could not rely on documents outside the OFP file.

Two days later, the district court issued an amended order for protection. The district court granted Father’s request for unsupervised parenting time and substantially increased the amount of parenting time allocated to Father.

The district court did not include any findings of fact to support its decision. Nor did it otherwise explain its decision, except to suggest that the reader reference the parties’ dissolution file.

Mother appealed, arguing that the district court erred by hearing and deciding Father’s motion to modify the OFP in light of Father’s failure to comply with statutory notice requirements. She also suggested that the district court’s order was without sufficient evidence or findings.

Father responded, suggesting that the appeal itself was moot. Father argued, in a letter to the Court of Appeals, that the parties reached a “binding agreement” that resolved all parenting time issues. Mother disputed Father’s claim. Father submitted nothing beyond the letter on appeal.

Judge Cochran noted that an applicant seeking relief from an appellate court in Minnesota must serve and file a written motion. Father failed to do so (“a letter to the court usually is not considered a motion”). Still, “because mootness “goes to jurisdiction” the appellate court offered insight.

Judge Cochran suggested that the general rule “is that when, pending appeal, an event occurs that makes a decision on the merits unnecessary, or an award of effective relief impossible, the appeal should be dismissed as moot.” The party asserting mootness bears the burden of proof.

Father offered limited evidence concerning the alleged agreement. He attached an email exchange among counsel noting that “the agreement has not yet been finalized” to his letter — and nothing more. Naturally, Judge Cochran determined that Father failed to meet his burden of proof.

As to Mother’s “notice” argument, the Minnesota Domestic Abuse Act permits the district court to modify an OFP upon “application, notice to all parties, and hearing.” Judge Cochran opined that because Father did not submit an affidavit in the OFP file or offer any witness testimony, nothing in the way of “notice” existed in the record.

The court of appeals further noted that the district court “abused its discretion by modifying the OFP without making factual findings or providing a legal basis for the modification.” The district court must “adequately explain” the grounds for its decision to modify an OFP.

As reiterated by Judge Cochran, the district court merely cited a separate court file rather than providing any explanation for its decision. That approach deprived the appellate court of record evidence upon which to ascertain the merits of the district court’s opinion.

More compelling, Judge Cochran noted that the “origins of this case underscore the need for reversal.” Given Mother’s allegations that Father physically and emotionally abused her, and the couple’s children, the safety of all took center stage.

The Kinney decision represents a conflicting approach among the district and appellate courts in Minnesota — and a disturbing trend. Is adequate attention given to acts of domestic abuse in custody and parenting time disputes?

It is no secret that the parenting time pendulum has shifted radically over the last 10 years. The notion of “equal parenting time unless there is a really good reason not to” is alive and well. But things have gone too far. Kinney is a shining example.

Too often, I experience decision-makers excusing abusers because “it didn’t happen in front of the children.” I’ve even been involved in cases in which the child was present,  but that fact was given little weight.

It’s easy for judges to simply follow the trend toward equal parenting time for all. It requires less scrutiny. A more nuanced approach is necessary.

Abusive conduct, whether physical, emotional, financial, or otherwise, creates a significant imbalance of power in a relationship. Today, it seems judges are more willing than ever to let things ride, on the premise that equal schedules require less parental interaction.

Doing so rewards the aggressor, and ignores the various best interest factors that are tied indirectly to domestic abuse. The ability of the parties to communicate, cooperate, encourage the child’s relationship with the other, and resolve conflict hinge directly on balanced power.

It is difficult to understand why the district court in Kinney increased Father’s parenting time, unsupervised no less, on the limited record presented. Judge Cochran’s observations must be taken seriously and provide some level of assurance to victims of domestic violence.

Jason Brown is a shareholder with Barna, Guzy & Steffen, Ltd. in Coon Rapids, Minnesota. In addition to his work as a divorce lawyer, he provides mediation services for family court litigants. Jason can be reached at [email protected].

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