What do you need to prove to obtain an Order for Protection for a child in Minnesota?
A parent or guardian can obtain an Order for Protection (
- Present harm (to the child); or
- An intention to do present harm (to the child)
But what if there is no evidence that the child was assaulted (i.e. spanked, hit, pushed, punched)? Does that mean that the child is not entitled to an OFP? It is important to understand the distinction between a domestic assault and an act of domestic abuse.
Act of Domestic Abuse vs. Domestic Assault
An act of domestic abuse should not be confused with a ‘domestic assault’; as a domestic assault is always an act of domestic abuse, but, an act of domestic abuse is not always a domestic assault. An ‘act of domestic abuse’ has a broader definition, and a lesser burden of proof than a ‘domestic assault’. A ‘domestic assault’ is a crime which has specific elements that must be proven in a criminal court beyond a reasonable doubt. Whereas ‘an act of domestic abuse’, must be proven in a civil court by a preponderance of the evidence. The preponderance of the evidence standard requires the party seeking the OFP to show the court that it is more probable that the act of domestic abuse occurred, than that act of domestic abuse did not occur. Simply put:
|Description||Where it is Proven||Burden of Proof|
|Act of Domestic Abuse||Civil Court – Family Court||More Probably Than Not|
|Domestic Assault||Criminal Court||Beyond Reasonable Doubt|
A party seeking an OFP should remember that the burden is to the show the court that it is more probable than not, that an act of domestic abuse occurred; it is not necessary to prove that a domestic assault occurred.
What Kind of Evidence is Needed?
When seeking an Order for Protection for a minor child, unlike when seeking a domestic assault conviction, it is not necessary that the minor child victim be present in court to explain to the Judge what happened. In fact, this can be very traumatic and harmful to a child to be forced to confront her/his abuser; especially when the child’s presence is unnecessary.
Instead, consider getting statements from a child psychologist, a counselor, a police officer, social worker, or another individual who would normally take statements from an abuse victim in the course of his/her duties. Statements made by a child outside of the courtroom setting, to one of these individuals described above, are admitted in a court proceeding, provided that there some general guidelines that are followed:
- The child’s statement is offered to support a material fact (shows whether or not the abuse occurred);
- The statement is more useful to showing whether or not abuse occurred, than any other piece of evidence (i.e. photographs, third party statements);
- The interests of justice will be served by allowing the statement into evidence.
The reason why these three guidelines permit out-of-court statements in Order for Protection hearings is that an OFP hearing, because it is a civil proceeding with a lesser burden of proof, does not entitle a party challenging issuance of the OFP, to a full hearing. The requirement that a Court must issue the OFP only after a full hearing was removed by the Legislature in 1995.
It is therefore important to know what information the Court needs, and, what the party seeking the OFP needs to bring to Court, to get the Order for Protection for a minor child. A minor child should not be forced to come to Court and testify to get the protection that the OFP can offer.
If you are unsure about how to proceed with an Order for Protection for a minor child, or simply have a question, please, contact us today to schedule your free consultation. You can call me at 651-647-0087 or reach out via our online contact form.