FAMILY LAW 34: Domestic violence and child custody.

R and J separated after R summoned the police to the marital home on April 12, 2017. R asserted that J had meted out verbal and physical abuse against her for over a decade. These incidents were often witnessed or heard by the children.

After filing for divorce, R secured a personal protection order (PPO) against J and temporary sole physical custody of their children. J objected and the court conducted a three-day evidentiary hearing to consider the propriety of the PPO and to determine an appropriate custody arrangement.

At the conclusion of that hearing, the court replaced the PPO with a mutual restraining order.

In relation to the best interest factors of MCL 722.23, the court mostly found the parties equal. In relation to domestic violence, factor (k), the court noted, there’s domestic violence, constant arguing, traumatizing the children that is not in their best interests. That’s why we’re separating the parties. The court found mutuality in the situation, however. Despite that R provided evidence corroborating that J employed physical violence against her and J relied on his word alone to claim that R was the aggressor, the court found that the constant yelling, fighting, pushing, shoving appears, at a minimum, to be mutual.

At the close of trial on April 20, 2018, the trial court determined that the children had an established custodial environment with both parents. The court found the parties mostly equal on the best interest factors. The court found that factor (j) weighed in J’s favor because R had not facilitated a close relationship between J and the children. Instead, R admittedly shut J out of decisions. The court found factor (k), domestic violence, the most difficult. The court reiterated its belief that R had exaggerated her claims that J abused her.

Overall, the totality the Court found the father more responsible on domestic violence, particularly in the presence of the children. There was a temper. The parties were at odds and fighting a lot. Certainly, if there’s a lot of argument, it’s a two-way fight. But there is testimony, corroborated through the children, which is sad, that there was physical violence. The court posited that the separation of the parties would mean the domestic violence is over. The court ultimately awarded the parties equal parenting time with the children.

R appealed that decision.

The appeals court was concerned with the trial court’s minimization of the effect of the domestic violence in the home upon the parties’ children. The court incorrectly stated that the potential for domestic violence was over because the parties were separated and therefore factor (k) would no longer be a concern. The record is replete with examples of John’s use of violence against others and his anger management issues. These issues predated the marriage, have continued since the divorce, and could occur again in the future. This issue must be more fully addressed on remand.

The appeals court remanded for further address.

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