If I have an OFP filed against me by my soon to be ex-wife, does that prevent my getting custody of our children?

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If I have an OFP filed against me by my soon to be ex-wife, does that prevent my getting custody of our children?

I have an OFP filed against me by my soon to be ex-wife. It expires on the 14th of this month. We are currently in court for custody of our children. The opposing attorney and judge are telling me I cannot have joint legal custody of my children because of the OFP. Is this true? And if so, is this the case after the OFP expires and I’ve kept clean and followed through with all court-ordered requirements and probation requirements?

Asked on September 5, 2012 under Family Law, Minnesota

Answers:

B.H.F., Member, Texas State Bar / FreeAdvice Contributing Attorney

Answered 8 years ago | Contributor

Minnesota has certain presumptions for child custody cases.  A presumption is something that a judge is legally allowed to assume.  These presumptions are set out in Minn. Stat. 518.17.  One presumption is that joint custody is best for the child.  However, if an OFP order has been entered against one parent, the court is allowed to presume that joint custody is not in the best interest of the child.  Even if the OFP expires, the court is allowed to presume that it will not be in the best interest of your child for you to have equal or joint custody..... so the judge and the opposing attorney are mostly correct in what they are telling you. 

However.... the opposing attorney is also forgetting to tell you that this is a "rebuttal presumption."  This means that you have the right to present evidence to the contrary and overcome the negative consequences of the OFP.  You really need to get an attorney to help you review your case and organize evidence that you can use it to rebut this presumption if you are interstested in getting sole or joing custody of your children.


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