Order of Protection & Modification of a Divorce Decree in Minnesota

by Erika Johansen

While a divorce decree is usually intended as a final order, courts in Minnesota may modify the child custody or visitation portions of the decree if an Order of Protection has been issued. The Order of Protection prohibits someone accused of domestic abuse from threatening or harming the alleged victim of that abuse. Orders of Protection typically apply to persons in close relationships, such as members of the same family or household.

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Order of Protection

An Order of Protection is designed to prevent domestic abuse. Specifically, the Order of Protection prohibits an individual from physically harming a family or household member or creating fear of physical harm. This relationship may include spouses, ex-spouses, children, other blood relatives, roommates and unmarried parents who have either a child or unborn child together. The Order of Protection requires an allegation of domestic abuse; therefore, when a court grants an Order of Protection, it may trigger a criminal investigation into the alleged abuser's behavior.

Types of Orders

You can apply at family court for a temporary protection order. You have several options: an exclusionary order, which ejects the alleged abuser from a house you share with him; a non-exclusion order, which keeps him away from your separate residence; and a protection order, which allows the two of you to remain in the same house while barring him from causing you fear or harm. The temporary order will not take effect until your alleged abuser has been served with notice. Within seven days of the temporary order, the court will hold a hearing where it has the option to extend the temporary order for up to one year. Both you and the accused must attend this hearing and provide evidence. If the court refuses to extend the temporary order, it ceases to be effective after the hearing.

Divorce Decree Modification

To modify your divorce decree, you must file a petition with the same court that originally established the decree. In a Minnesota divorce, both the child custody and child visitation rulings are based on what is best for the physical and emotional health of the child. Therefore, the court will take domestic abuse into account when awarding custody and visitation. Under Minnesota law, proven allegations of abuse create a presumption that the abuser should not have contact with the children. Therefore, if an Order of Protection has been granted, the court will presume the abuser should not have contact with his children. However, the presumption is rebuttable, meaning the abuser can present evidence in his favor. But if the court doesn't agree, it can modify the divorce decree to reduce or eliminate the abuser's custody and visitation rights. In contrast, if a court vacates an Order of Protection, the alleged abuser can petition the court for reinstatement of his custody and visitation rights.

Violation of Order

If you have an Order of Protection that has been violated and you are in danger, call 911; you also have the option of contacting law enforcement to press charges. The first violation of an Order of Protection is usually a misdemeanor offense, typically carrying a penalty of at least three days of imprisonment and court-imposed counseling or treatment. However, if the abuser violates the order while carrying a dangerous weapon, the violation may result in a felony, punishable by at least 30 days of jail time and additional punitive action. Multiple violations of Orders of Protection within a 10-year period can increase these penalties. The abuser may also face sanctions for contempt of court.