For victims of domestic or family violence, a divorce is typically needed in order to leave the abusive relationship. There are criminal laws, civil protection laws, and family and domestic laws in Indiana to protect victims of domestic violence, including spouses and children. When there is a pending protective order and divorce case between the same 2 parties, Indiana law consolidates both cases into one as domestic violence and protective orders will likely have a bearing on different aspects of a divorce, including custody and parenting time.
The Difference between a Temporary Restraining Order and a Protective Order
There is often some confusion between a temporary restraining order and a protective order when it comes to a divorce. Temporary restraining orders typically don’t involve domestic violence situations. During a divorce, either spouse can request the court to issue a temporary restraining order as part of an order for temporary maintenance, child custody or support, or the possession of certain pieces of property. They can prevent a party from transferring, hiding, or disposing of property except in the normal course of living or business in order to restrain a party from unnecessarily dissipating marital assets until they are divided between the parties. Violations of such orders can result in sanctions, being ordered to pay attorney and legal fees to the other party, and can negatively affect that party’s property division award by the court. These orders can also award one party temporary possession of property during a divorce such as the possession of the marital residence. In such a case, the other party is restrained from residing in or entering the residence.
If you or your children experienced domestic violence during your marriage or after you separated, you may want to request a protective order during your divorce. The procedure for obtaining a protective order in a divorce is the same as for any other relationship that had domestic violence, sexual assault, or stalking under Indiana Code Section 34-26 Chapter 5, the Indiana Civil Protection Order Act. Such orders can prohibit the other party from coming to the victim’s residence, workplace, or other locations the victim visits frequently. In the case of child abuse, these orders can also prohibit the party from going to the child’s school or other places where the child may have games, classes, or other extracurricular activities.
How Does Domestic Violence Affect Custody?
The “best interests of the child” standard is used in Indiana for determining child custody. Pursuant to Indiana Code Section 31-14-13-2, Factors of Custody Determination, the court is to consider all relevant factors, including the age and sex of the child, the wishes of the child’s parents, the wishes of the child, with more consideration given to the child’s wishes if the child is at least 14 years of age, the interaction and interrelationship of the child with the child’s parents, siblings, and any other person who may significantly affect the child’s best interest, the child’s adjustment to his/her home, school, and community, and the mental and physical health of all individuals involved. Further, this statute explicitly states that the court is to consider whether there was evidence of a pattern of domestic or family violence by either parent. This applies to a custody determination whether or not the parents were married. Depending upon the facts and severity of the evidence presented to the court regarding domestic violence, a judge may take certain precautions to protect the child, including limiting or reducing parenting time, not allowing overnight visitations, requiring parenting time to be supervised by another person or at a facility, prohibiting the consumption of alcohol during visitations, and even awarding sole custody to the other party.
In the case where a parent has been convicted of domestic or family violence, the Indiana Code can vastly limit that party’s contact with his/her child. For example, pursuant to Indiana Code Section 31-17-2-8.3, if a noncustodial parent has been convicted of a crime involving domestic of family violence that was witnessed or heard by the noncustodial parent’s child, there is created a rebuttable presumption that the court shall order that the noncustodial parent’s parenting time with the child must be supervised for at least 1 year and not more than 2 years immediately following the crime involving domestic or family violence, or until the child becomes emancipated, whichever occurs first.
Domestic violence may even affect “custody” of a family pet during a divorce. Family pets are considered property in a divorce and so marital property laws apply. Typically, the party who owned the pet before the marriage or inherited it may have the animal as separate property, but it also may be divided as part of the divorce when obtained during the marriage. In such a case, the party who primarily cared for the pet and the party who abused the pet will definitely be considered. If custody of a pet is an issue, Indiana does have laws to address animal cruelty in domestic violence situations. For example, a person who intentionally kills an animal to terrorize a family or household member commits a Level 6 felony and can be punished by 6 months to 2 ½ years in prison and incur up to a $10,000.00 fine.
If you or your children are victims of domestic violence, please seek help. In an emergency situation, please call 911. If you are alone or safe, you can learn more about safety planning for victims by calling the Indiana Coalition Against domestic Violence 24-hour hotline at 1-800-332-7385. If you are now safe and need help with domestic violence or you are thinking about a divorce, child custody, or support case, our Indianapolis domestic violence lawyers at Banks & Brower, LLC can help you. Give us a call at (317) 870-0019, or email us at info@banksbrower.com. We are available to take your call 24/7/365.