Can Domestic Violence Affect My Divorce or Paternity Case?

Mediate This! Podcast:

Hi, my name is Sydney Mitchell. Hi, I’m Matthew Brickman, Florida Supreme court mediator. Welcome to the Mediate This! Podcast where we discuss everything mediation and conflict resolution.

(00:13):
I had a listener write in and ask, how does domestic violence affect how a case will be viewed? And ultimately, the outcome? Let me first, uh, say that under no circumstance at any time ever is domestic violence acceptable. Um, you should never, ever, ever be violent towards a spouse, significant other, um, or anybody else for that matter. Um, especially I find it very disheartening when, you know it’s in a marriage where at one point you said that you were gonna love, honor, protect, cherish, uh, provide for this other person. They were the one you chose out of every other person on this planet, and swore that you would be with them till death to you apart, and then somehow you ended up, um, physically attacking them is just, you know, absolutely uncalled for. And so how does the court view that? Well, it is, at least when it comes to parenting, it is, uh, in the state of Florida, and it’s very important to know the laws in your own state.

(01:17):
But in the state of Florida, it is one of the 20 factors that is used to overcome the burden, um, of the legal presumption of equal time sharing with the child. So let me read to you what the statute says, then I’ll tell you about a mediation I had just recently. So one of the factors is the evidence of domestic violence, sexual violence, child abuse, child abandonment, or child neglect, regardless of whether a prior or pending action relating to those issues has been brought. If the court accepts evidence of prior or pending actions regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect, the court must specifically acknowledge in writing that such evidence was considered when evaluating the best interest of the child. So what does that mean? Um, so I had a mediation recently where the father and husband had, um, for lack of a better word, bludgeoned, the mother, um, had just gone off on her and just beat her to a pulp.

(02:36):
Um, she was in the hospital, she had some fractures. The husband was arrested, um, and there was a no contact order that was entered between him and the mother as well as him and the child. And the reason for it is because he did this in the presence of the child. Um, and so, uh, the court actually had said, you know, there is no contact between you and the mother and the child. Now I’ve had this before, uh, seen it before, had a mediation prior where, um, the father had absolutely beat the mother up. Just something awful. But the kids weren’t there. And so there was a no contact order between the, uh, husband and the wife, but not between, uh, the dad and the kids. Um, and so, you know, that definitely though got in the way of creating the parenting plan because what happened is, you know, if the father’s not able to contact the mother because they have a no contact order, but they’re still supposed to co-parent and talk about the kids, then how is that done?

(03:49):
So that’s where, you know, things like, uh, programs that we use, like our Family Wizard, talking parents, um, or even app clothes come into play because it does give a monitoring system Very good details, um, for the court, especially since there’s no contact. Uh, but you know, the contact is only about the child, nothing else. Um, what does that do for time sharing? Well, you know, it can prevent time sharing. It can create a situation where there’s supervised time sharing. There’s facilities like faces, um, or there’s, uh, there’s professionals that you can hire to actually, um, help facilitate the supervised time sharing. But, uh, you know, sometimes there’s time sharing, uh, supervision. Sometimes it’s a step up plan, or sometimes there’s therapeutic, uh, visits where, you know, maybe, uh, the child and the father go to, you know, depending on the age of the child, but maybe the child and the father go to therapy.

(04:55):
And that’s where the timesharing, uh, takes place as, you know, maybe the child had witnessed this and so the child’s scared or they have issues, um, with the dad, even though the, the father may have done the domestic violence, you know, with, uh, with the mother. Um, and so, you know, how is it viewed? It’s never viewed, uh, well, but usually there’s, you know, there’s a criminal action as well as, you know, a family, uh, action as well. So we’re also dealing with two different courts, two different rules, different standards, different evidence. Uh, you know, that’s, that’s done. And so, um, it does, you know, make it more costly, more, uh, time consuming. Um, and, you know, ultimately, let’s say for example that, you know, maybe there is a, uh, a no contact order maybe that does, um, overcome the burden. Uh, and so there’s not 50 50 timesharing.

(05:56):
Um, in Florida, again, there’s a rebuttable presumption that 50 50 timesharing is in the best interest of the child. But, um, you know, if there’s domestic violence, well then, you know, maybe that’s not in the best interest of the child. Um, and so in this case that I had recently, you know, it, it was, there was not 50 50 time sharing. There was limited time between the father and the child because of the, uh, child abuse, or, sorry, not, not the child’s abuse, the, uh, domestic violence. Now, how did it play out? So the father, uh, ended up on, uh, probation, but his probation was set to end in about six months. And so, uh, what everybody ended up agreeing on was a step up plan where it started out with, uh, some supervision and no overnights, and then eventually the supervisor, uh, was phased out, and then there was just some alone daytime between the father and the child.

(07:03):
And then eventually there was some overnights between the father and the child. And it would eventually, once the father’s probation ended, eventually it would then move into, um, 60 40 and eventually 50 50. So I think we did about a year step up plan. Um, but it wasn’t just, okay, sit back and wait for a year. There were steps. Um, and we, um, we made, uh, what we call the, you know, substantial compliance. We defined what substantial compliance would mean for each step, and each step had to be completed. If the step was not completed, it didn’t send the father all the way back to the very first step. He would simply stay at that step until he completed and complied with everything under that step and then would go forward. So, uh, a number of years ago, I had a mediation where we had done a six month step up that took the father, uh, about two years to actually comply and do the entire, uh, phase and plan.

(08:08):
But what’s great about doing plans like that is, uh, you don’t need to keep calling your attorney. You don’t need to keep filing motions for contempt enforcement. It’s, you know, the accusations of the other parent is blocking my time and not allowing me. No, we build it out in mediation so that, um, basically, you know, if, if, if somebody did perpetrate the domestic violence, well, they hold the keys to their own cell. If they, uh, can obey and comply, then they can move along. And it’s, you know, everything moves along as it was negotiated. Uh, a lot of times people are able to do that, not a problem. But the whole thing is to create a safe environment for, uh, for everybody to move forward in. And so, um, you know, domestic violence can definitely come into play for, uh, the timesharing. Does domestic violence come into play for dividing up a retirement account or, um, alimony or, you know, maybe unequal distribution of the sale of a marital property? No. Um, where the domestic violence is gonna come into play is in a parenting plan, um, if the parties have children. So hopefully that answered your question, and I look forward to answering more questions in the future.

Matthew Brickman:
Occasionally Sydney and I will be releasing Q&A bonus episodes where we’ll answer your questions and give you a personal shoutout.

Sydney Mitchell:
If you have a comment or question regarding anything that we discuss, email us at info@ichatmediation.com that’s info@ichatmediation.com and stay tuned to hear your shout out and have your question answered here on the show.

Matthew Brickman:

For more information about my services or to schedule your mediation with me, either in person or using my iChatMediation Virtual Platform built by Cisco Communications. Visit me online at www.iMediateInc.com. Call me at 561-262-9121, Toll-Free at 877-822-1479 or email me at MBrickman@iChatMediation.com.