Unfortunately, in some cases involving minor children, domestic violence is a factor that courts are required to consider. The state of Oklahoma takes domestic violence seriously, so it’s good to understand how domestic violence can affect your case, and what it means for custody of your children.
Definition of Domestic Violence
There are several definitions of domestic violence in Oklahoma’s statutes. The one that applies most often in custody and visitation cases is found in 43 O.S. § 109. It covers any act of physical abuse, the creation of a reasonable fear of it, and the intentional infliction of emotional distress that creates a fear of abuse. Let’s break that down:
1) Any act of physical abuse, or the creation of a reasonable fear thereof.
This one seems self-explanatory on the surface, but underneath there are tons of legal questions that the answer hinges on. What is physical abuse? What is a reasonable fear thereof? What does it mean to create that fear? Is there a time limit on when the physical abuse occurred? Oklahoma courts have answers to some of these questions, but not all of them. Unfortunately, this is usually a judge-specific inquiry, meaning your results may vary wildly depending on the county and docket you find yourself in.
2) The intentional infliction of emotional distress.
This is often where parties argue that emotional manipulation, financial coercion, or other forms of mental abuse amount to domestic violence. Some common examples of this are suicide threats when the minor child is in your care, extreme financial coercion and control, and repeated threats of harm against oneself if another person does not do what they say. But practically, this type of abuse is very difficult to prove, and courts heavily scrutinize emotional abuse.
How does domestic violence affect my case?
Domestic violence affects your case in two (2) ways. First, it creates a rebuttable presumption that joint custody, and in some cases even unsupervised visitation, is not in the minor children’s best interests. Second, Oklahoma requires that a party who has committed domestic violence pay a substantial portion of the victim’s reasonable attorney’s fees and costs. Note that, for custody, the presumption is rebuttable, meaning that if the other party can prove that joint custody is in the minor child’s best interests, the court can award joint custody.
Does a court have to consider domestic violence?
If a party alleges domestic violence, the court is statutorily required to hear the evidence and consider it when ruling on custody and visitation. Practically, however, victims are sometimes asked, “Why didn’t you do something back then, when the domestic violence occurred?” This mindset places an unfair and improper burden on victims of domestic abuse.
The bottom line: domestic violence plays a significant role in the anatomy of custody and visitation cases. If you believe that you are a victim of domestic violence, or you are concerned that your spouse may allege that you have committed domestic violence, it is best to contact an attorney to understand your issues and case. Call Croslin Law today.