Protecting Yourself and Your Parental Rights
ORDERS FOR PROTECTION
HARASSMENT RESTRAING ORDER (HRO)
A Harassment Restraining Order is an order signed by a judicial officer (judge or referee)
that orders someone to stop harassing you and have no contact, unless allowed in the court order.
It is not a criminal proceeding and takes place in civil court.
“Harassment” includes: (1) a single incident of physical or sexual assault, a single incident of stalking/harassment under § 609.749, subdivision 2, clause (8), a single incident of nonconsensual dissemination of private sexual images under § 617.261, or repeated incidents of intrusive or unwanted acts, words, or gestures that have a substantial adverse effect or are intended to have a substantial adverse effect on the safety, security, or privacy of another, regardless of the relationship between the actor and the intended target; (2) targeted residential picketing; and (3) a pattern of attending public events after being notified that the actor’s presence at the event is harassing to another.
ORDER FOR PROTECTION (OFP)
An Order for Protection is a court order which can address factors such as: establishing physical perimeters, limiting contact, temporary custody and parenting time, and/or use of property. In Minnesota, orders for protection are handled by family court and are not considered criminal cases, unless otherwise determined that laws have been violated.
Family members or household members can seek an OFP including people who are currently married, used to be married, blood relatives, people cohabitating, previously cohabitating, biological parents of a child, dating partners, etc. An OFP can be secured before, during, or after a divorce, but the matter is separate from the divorce proceeding. Someone can also petition the court for an OFP on behalf of a child under certain circumstances.
The OFP process can be initiated without an attorney, however in doing so the petitioner must follow all the same rules of court and laws, just as a lawyer does, which can make the process both daunting and overwhelming. Some of the laws and rules of court are addressed in the following:
- Minnesota Statutes Chapter 518B Domestic Abuse Act
- Minnesota Statutes § 609.748 Harassment; Restraining Order
- Minnesota Statutes Chapter 260C Child Protection
- Minnesota Rules of Civil Procedure
- Minnesota Rules of Juvenile Court Procedure
- Minnesota General Rules of Practice in the District Courts
- Title I Rules Applicable to all Court Proceedings
- Title II Rules Governing Civil Actions
- Title IV Rules of Family Court Procedures
- If you feel that you are in imminent danger, you should contact law enforcement or 911 emergency services.
Under Minnesota law, there are two types of child custody:
- “Legal custody” refers to the right to make decisions about how to raise the child, including decisions about education, health care, and religious training.
- “Physical custody” refers to the right to make decisions about the routine day-to-day activities of the child and where the child lives.
Depending on several factors, parents may share custody which is called “joint custody.” If only one parent has full custody, that is called “sole custody.”
“Joint legal custody” means that both parents share the responsibility for making decisions regarding how to raise the child, including the right to participate in major decisions about the child’s education, health care, and religious training. “Joint physical custody” means that the routine daily care and control and the residence of the child is structured between both parents.
There is also the possibility of different combinations of custody of a minor child. For example, both parents might have joint legal custody but only one parent may have sole physical custody.
Generally, in order to have your child custody issues decided by a judge in Minnesota, the child must have lived in Minnesota with a parent or a person acting as a parent for at least six (6) consecutive months (180 days) before starting the court proceeding. There are exceptions for emergency situations.
When considering a petition for custody, Minnesota courts consider what is in the best interest of the child(ren). These best interest factors are established in Minnesota Statute 518.17 and are available to review here.
If you live in Minnesota but your child lives with the other parent in another state, your case may be more complicated. We recommend that you consult with a lawyer experienced in custody matters about where you may be able to file your custody case or modify an existing custody order.
When parents are separated, the court usually wants both parents to be involved in the child’s or children’s’ lives if doing so is in the best interest of the child or children. The parent who does not have custody of the children usually gets parenting time. Parenting time is also referred to as visitation.
Parenting time is ordered by the court so that the child and the parents have the opportunity to maintain a relationship. Factors influencing parenting time orders include, but not limited: child’s age, child’s safety, and the child’s past relationship with the parents.
Parents can agree to change parenting time but, if the parents don’t agree, a parent can petition the court to change parenting time if it is best for the child. If a custodial parent states that parenting time puts them or the child in danger, there must be a hearing, usually expedited.
Enforcing a parenting time order can be hard, especially if the child is older and does not want to see the other parent. But a parenting time court order can be enforced until the child turns 18.
A “paternity” legal proceeding is the process of determining the legal father of a child. Once the legal father has been determined, they have an obligation to support the child financially and the right to petition the Court for custody and/or parenting time. In Minnesota law, the unmarried mother has sole custody unless a Court issues a custody order indicating otherwise.
The process of determining paternity has several components and important time frames including completion of the “Recognition of Parentage Form”, “Minnesota Father’s Adoption Registry” and a host of legal factors related to petitioning for custody and/or parenting time.
Minnesota has common and statutory laws that allow grandparents the ability to seek visitation and even custody, both of which can be complicated partly because the State sees grandparent visitation as an extension of the parent’s rights. Furthermore, it can be difficult for a grandparent to seek visitation time if the child’s parents object. However, there may be circumstance that allow grandparents to gain visitation, even sometimes custody, due the circumstances of the case. These circumstances typically include:
- The grandparent’s child, which is the parent of the child in question, is deceased.
- The grandparent has been the primary caretaker of the child for at least 12 months and they are now seeking custody.
The court will look at all factors, including what is in the best interest of the child.