It is not uncommon for the term “domestic violence” to get tossed around in divorce or custody cases.  What is or what is not domestic violence means different things to different people. In a recently published case, Brown v Brown, the Michigan Court of Appeals considered domestic violence as it relates to child custody, and the term was defined in an expansive way which may be surprising to many. In light of this case, anyone who has been accused of domestic violence or believes they or their children are victims of domestic violence should be aware of it. Here are some of the highlights.

The facts in Brown involved a parent who used excessive corporal punishment that left the children with bruises or red marks. Additionally, the parent used physical punishment on the family pets in front of the children. Even though it is not defined in the child custody act, “domestic violence” is a factor that trial courts must consider when reviewing custody disputes. It is generally inappropriate for the court to use the definition of a term from one statute or law in an unrelated statute or law; however, the court here decided to use the definition of “domestic violence” from the Domestic Violence Prevention and Treatment Act, while also declining to use the definition under the Michigan Penal Code. Therefore, domestic violence under the Child Custody Act is now defined as follows:

The occurrence of any of the following acts by a person that is not an act of self-defense:

(a) Causing or attempting to cause physical or mental harm to a family member or household member.

(b) Placing a family or household member in fear of physical or mental harm.

(c) Causing or attempting to cause a family or household member to engage in involuntary sexual activity by force, threat of force, or duress.

(d) engaging in activity toward a family or household member that would cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed, or molested.

And, “family or household member” includes (1) a spouse or former spouse; (2) and individual with whom the person resides or has resided; (3) an individual with whom the person has or has had a dating relationship; (4) an individual with whom the person is or has engaged in a sexual relationship; (5) an individual to whom the person is related or was formerly related by marriage; (6) an individual with whom the person has a child in common; (7) the minor child of an individual described in paragraphs (1) to (6).

The two most surprising elements of this expansive definition of domestic violence are that first, it specifically includes minor children (and can potentially include numerous relatives and their children). Abuse of children was thought to be covered in other factors within the Child Custody Act, but now should be considered under the domestic violence factor as well. Second, the court determined that while abuse of pets is not domestic abuse, harm to an animal with whom a person is emotionally bonded could arise to domestic violence against that person.

In many cases involving abuse of children, judges act quickly when evidence of abuse is obvious. However, some in cases it can be more difficult to determine whether abuse occurred, like accidents or use of physical punishment, for example. While parents do have a right to use physical discipline against their children, it is clear that it is disfavored by many courts and parenting authorities. Therefore, if a parent decides to administer physical discipline, the discipline must not be excessive, nor should the discipline harm the child. The facts may not always be as obvious to the court as they were in Brown, however, the existence of domestic violence against spouses or children can certainly influence a custody case.