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Domestic violence injunctions are supposed to be used as a means to protect against domestic violence and/or stalking.

Unfortunately, they are too often used as a tactic to gain an advantage in a custody dispute on a dispute over a residence.  Now, this is not a revelation to Judges – who are often the same judge who will hear the divorce case.  Moreover, the statute that sets forth the factors for the Court to consider in a custody dispute includes “false allegations of domestic violence.”

Now divorce involving minor children can be difficult emotionally and financially even under the best of circumstances. When allegations of domestic violence pop-up the case always because more difficult for all involved.

This should not be interpreted to mean if there is, in fact, a true need for a domestic violence injunction you should not file – YOU SHOULD.

Rather the point of this blog entry is to caution parties from making false or exaggerated statements to “win the battle” in a custody dispute.  Even if an injunction is entered the subsequent order in the family law matter (divorce or paternity case) will trump the court order in the domestic violence case.  Other factors include the extent to which each parent promotes or interferes with the other parent’s access to the minor child.  While this factor is extremely important in custody disputes and often controlling there does exist an exceptions that courts can justify lack of promotion where there exist a history of domestic violence.

I know it is getting complicated; so I will try to simplify. If you need to file an injunction to protect yourself or your children, file it.  If you do not need an injunction to protect yourself or your child don’t file it to try to gain an advantage in a custody dispute over the residence.

 

’till next time this has been,

Chet E. Weinbaum J.D.

 

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