Finding Her Shield: A Mother’s Journey from Powerlessness to Protection

A Narrative Story of In re the Matter of Thornton v. Ortiz Bosquez, 933 N.W.2d 781 (Minn. 2019)

Jessica Ortiz Bosquez* never imagined that seeking legal help for a personal injury would lead to the most complicated relationship of her life. When she first met Matthew Thornton in his law office, she was simply a client needing representation. But their professional relationship evolved into something personal in 2010, beginning a tumultuous on-and-off relationship that would span years and ultimately center around the most precious thing in Jessica’s world – their daughter.

The relationship with Matthew was unlike anything Jessica had experienced. As an attorney, he possessed a level of education, professional status, and financial resources that created an inherent power imbalance between them. When Jessica became pregnant in early 2014, she moved into Matthew’s house, hoping that starting a family together might bring stability to their volatile relationship.

But pregnancy didn’t calm the storms between them. Instead, Matthew’s behavior became increasingly hurtful and controlling. He frequently denied being the father of their unborn child, accusing Jessica of infidelity with cruel and degrading language. He called her “whore” and “slut,” questioning her ability to be a good mother with derisive comments that cut deep into her heart. These weren’t occasional outbursts – Jessica experienced this demeaning treatment as a “constant and daily occurrence.”

The emotional abuse extended beyond cruel words. Matthew engaged in what felt like systematic efforts to control and manipulate her. He secretly photographed pages from her private diary, invaded her privacy, and gathered information about her foster care background and her family’s criminal history. Jessica felt trapped and powerless, knowing that Matthew used this information to threaten to take custody of their child if she didn’t comply with his demands.

Even after their daughter was born in November 2014, the toxic dynamics continued. Matthew’s controlling behavior escalated to disturbing levels. He secretly dumped out Jessica’s breastmilk based on unfounded suspicions that she was abusing alcohol, showing a complete disregard for both her efforts to nourish their child and her emotional well-being.

Jessica felt increasingly powerless in the relationship. Despite Matthew being educated and successful, despite living in his house and being financially dependent on him, she found herself reacting to his constant emotional abuse in ways that frightened her. The powerlessness and frustration built up inside her until she sometimes lashed out physically – scratching, hitting, even threatening him with a knife during their worst fights. She attempted suicide once, feeling so trapped and hopeless that she couldn’t see another way out.

Jessica knew her physical reactions were wrong, but she felt like she was drowning in a relationship where she had no voice, no power, and no escape. Matthew’s professional status, his control over their living situation, and his threats about custody made her feel like she had no options. The woman who had once been strong enough to survive foster care and build a life for herself felt completely diminished.

Everything changed in November 2015 when Matthew filed for custody and simultaneously sought an order for protection against her. Jessica felt a mixture of relief and terror. Relief because the toxic relationship was finally ending, but terror because Matthew was using the legal system – his area of expertise – to potentially take away the one thing that mattered most to her: their daughter.

When Jessica stipulated to the order for protection without factual findings, she wasn’t admitting guilt so much as acknowledging that she needed help and that their relationship needed to end. She was grateful that the court dismissed Matthew’s petition seeking protection for their daughter, recognizing that the child had never been in danger from Jessica’s actions.

The temporary custody arrangement gave Matthew primary custody while Jessica had parenting time. During this period, Jessica began to heal and transform. Away from the constant emotional abuse and manipulation, she started to rediscover who she was as a person and as a mother. She engaged in mental health treatment, working to understand and address the trauma that had led to her physical reactions during the relationship.

Most importantly, Jessica focused on being the best mother she could be. During her parenting time, she created a loving, stable environment for their daughter. She established routines, engaged in activities that brought joy to her child, and demonstrated the nurturing, caring parenting that came naturally to her when she wasn’t living in a state of constant stress and powerlessness.

The guardian ad litem’s investigation brought Jessica hope and validation. After conducting extensive evaluations, home visits, and interviews with everyone involved in their daughter’s life, the guardian recommended that Jessica and Matthew share joint physical custody and joint legal custody. Every disinterested evaluator who assessed Jessica’s parenting praised her abilities and commitment to their daughter’s well-being.

The two-day trial in January 2017 was emotionally challenging for Jessica. Matthew presented extensive testimony and over 90 exhibits, painting a picture of her as an unfit mother. But Jessica’s attorney wisely chose to rest their case on the guardian ad litem’s thorough reports and the cross-examination of Matthew’s witnesses, letting the professional evaluations speak for themselves.

When the referee issued his detailed 31-page decision in May 2017, Jessica felt a profound sense of validation and empowerment. The court recognized the complexity of their situation, acknowledging that while Jessica had committed domestic abuse, it occurred in the context of Matthew’s “coercive control and manipulation” throughout their entire relationship.

The referee found that Matthew, despite being the victim of domestic violence, had retained the “vast majority of power” over Jessica because of his education, profession, and the fact that they lived in his home. The court understood that Jessica’s “abusive actions were in the context of how powerless she felt in the relationship.”

Most importantly, the court recognized Jessica’s transformation and growth. There had been no incidents of physical abuse since the order for protection was put in place. The referee noted that Jessica had respected the order and that her apparent obsession with maintaining the relationship had ended. Every professional evaluator had praised Jessica’s parenting abilities and her commitment to their daughter’s well-being.

The court’s decision to award Jessica sole legal custody felt like a recognition of her growth and her ability to make decisions in their daughter’s best interests. The referee was concerned that Matthew would “use joint legal custody as a weapon” against Jessica, given his history of coercive control and manipulation. The court trusted Jessica to make major decisions about their daughter’s upbringing while still valuing Matthew’s input when appropriate.

The award of joint physical custody meant that their daughter would have substantial time with both parents, which Jessica knew was in her child’s best interests. The court found that both parents were “loving parents who can and do provide for all the child’s needs” and that their daughter was “happy and healthy” and had “a close and loving attachment to each parent.”

When Matthew appealed the decision, Jessica felt anxious about potentially losing the custody arrangement that was working so well for their daughter. But she also felt confident that the courts would continue to recognize what was truly in their child’s best interests.

The Court of Appeals’ affirmation of the district court’s decision brought Jessica relief, but she knew the fight wasn’t over when Matthew petitioned the Minnesota Supreme Court for review. The thought of having to defend her parenting and her transformation at the state’s highest court was daunting, but Jessica had found her voice and her strength.

When the Minnesota Supreme Court issued its decision in October 2019, Jessica felt a profound sense of empowerment and validation. The state’s highest court had unanimously affirmed the custody arrangement, recognizing that the district court had properly applied the law and made decisions based on their daughter’s best interests.

The Supreme Court understood that the domestic abuse presumption was designed to protect children, not to mechanically punish one parent or reward another. The court recognized that Jessica’s actions had occurred in a specific context of powerlessness and that she had demonstrated significant growth and change since the relationship ended.

Most importantly, the Supreme Court affirmed that their daughter was thriving under the current custody arrangement. The court noted that both parents were capable and loving, that their daughter had close attachments to both parents, and that she was happy and healthy in both homes.

For Jessica, the Supreme Court’s decision represented the culmination of a journey from powerlessness to empowerment. She had survived a toxic relationship, acknowledged her mistakes, sought help to address her trauma, and demonstrated her ability to be an excellent mother. The legal system had recognized her growth and trusted her with the responsibility of making major decisions about their daughter’s future.

The victory was not about winning against Matthew, but about creating the best possible environment for their daughter to thrive. Jessica could move forward with confidence, knowing that she had found her voice, reclaimed her power, and proven her ability to put their child’s needs first. The courts had recognized that she was not defined by her lowest moments during a toxic relationship, but by her capacity for growth, healing, and excellent parenting.

Their daughter would grow up knowing that both her parents loved her but also knowing that her mother had fought to create a stable, healthy environment where she could flourish. Jessica’s journey from powerlessness to empowerment had not only transformed her own life but had secured a bright future for the child she loved more than anything in the world.

*This story is based on the true facts of the appellate court’s decision, but the personal experiences and emotions described are a fictional representation to bring the case to life.

Question: How does domestic abuse impact custody and parenting-time decisions?

Answer: The child’s best interests are the most important thing courts consider in all custody cases, and courts must look at specific factors including whether domestic abuse has occurred and how it affects the child’s safety and well-being.

“The court’s ‘paramount consideration’ in all matters involving court established relationships of a child is the best interests of the child.” LaChapelle v. Mitten, 607 N.W.2d 151, 158 (Minn. Ct. App. 2000) (quoting Olson v. Olson, 534 N.W.2d 547, 549 (Minn. 1995)). Prior to August 1, 2015, Minnesota Statutes section 518.17, subdivision 1 set forth 13 best interest factors for the court’s consideration in determining what custody arrangement would serve the child’s best interests. Those factors included but were not limited to: the child’s reasonable preference; the child’s primary caretaker; the child’s adjustment to home, school, and community; the child’s cultural background; and the mental and physical health of all involved.

Effective August 1, 2015, the legislature amended Minnesota Statutes section 518.17, subdivision 1(a) to provide 12 revised factors for the court to consider when determining what custody arrangement will serve the best interests of the child. The court must consider all relevant factors when evaluating the best interests of the child for purposes of determining issues of custody and parenting time, specifically including the following factor: Factor Four: Whether Domestic Abuse, as Defined in Section 518B.01, Has Occurred in the Parents’ or Either Parent’s Household or Relationship; The Nature and Context of the Domestic Abuse; and the Implications of the Domestic Abuse for Parenting and for the Child’s Safety, Well-Being, and Developmental Needs (Minn. Stat. § 518.17, subd. 1(a)(4)).

Question: How does domestic abuse between parents affect children even if the child wasn’t directly hurt?

Answer: Children can suffer emotional harm from witnessing abuse between their parents, and being exposed to violence may cause them to repeat that behavior later in life.

This factor considers domestic abuse between the parents or in either parent’s household or relationship and the implications of that domestic abuse on the child. “[E]ven when there has not been physical abuse of the child, the child may suffer emotional distress in the presence of an abusive parent; and a child exposed to violence may perpetuate that behavior.” Beardsley v. Garcia, 731 N.W.2d 843, 851 (Minn. Ct. App. 2007) (holding that in an order for protection (OFP) proceeding, district court had discretion to curtail parenting time to parent who abused other parent), aff’d, Beardsley v. Garcia, 753 N.W.2d 735 (Minn. 2008).

Question: What must courts do before deciding how domestic abuse affects custody?

Answer: Courts must first determine whether domestic abuse actually happened, which may be disputed between the parents, before deciding how that abuse impacts parenting and custody decisions.

The court must first determine whether domestic abuse occurred, which may be disputed between the parties, prior to determining the implications of that abuse on parenting. An example in the context of an OFP is Cardinal v. Cardinal, No. A06-1307, 2007 WL 1599487, at *5 (Minn. Ct. App. June 5, 2007), which involved a father agreeing to the issuance of an OFP in favor of the mother without the court making findings as to whether he committed domestic abuse. However, in order to determine temporary custody of the parties’ minor children, the district court “received evidence and argument from the parties concerning the disputed abuse accusations” and ultimately found that domestic abuse had occurred and granted the mother sole custody of the parties’ minor children. Cardinal, 2007 WL 1599487, at *5. The court of appeals found that it was appropriate for the court to take evidence on the issue of domestic abuse and make a finding as to whether domestic abuse occurred because the parties disputed custody of the children, and domestic abuse pertains to several of the best interests factors. Id.

Question: Why don’t courts automatically deny custody to someone who committed domestic abuse?

Answer: Courts must look at how the abuse affects parenting and the child specifically, not just whether abuse happened, because sometimes the abusive parent might be better at encouraging the child’s relationship with the other parent.

There is an explanation as to why a court must consider the implications of the domestic abuse for parenting as well as simply whether domestic abuse occurred in Muellerleile v. Muellerleile, No. C9-97-1141, 1997 WL 739393, at *1 (Minn. Ct. App. Dec. 2, 1997): To read the provision as making a finding of abuse a blanket prohibition on consideration of a potential custodian’s fostering of a child’s relationship with a non-custodial parent, would, in cases of inter-parent abuse not impacting the child, cause the provision to conflict with Minn. Stat. § 518.17, subd. 1(b) (1996), which precludes consideration of a proposed custodian’s conduct not impacting the parent-child relationship. Further, a blanket prohibition would, when the abuser is more likely to foster the child’s relationship with the other parent than is an abused parent, conflict with the definition of “best interests” as “all relevant factors including” (and hence not necessarily limited to) those [factors] listed in the statute. In Muellerleile, the court found that the father had committed domestic abuse against the mother and awarded custody of the parties’ minor child to the father. The court of appeals affirmed, noting that there was no evidence that the father had ever abused the child, the father had sought therapy and posed no danger to the child, and the mother would not foster the parent-child relationship with the father. Muellerleile, 1997 WL 739393, at *1.

Question: Can someone who committed domestic abuse still get custody of their child?

Answer: Yes, someone who committed domestic abuse can still get custody if all the factors show that giving them custody is in the child’s best interests, because the law doesn’t automatically favor either parent.

The Minnesota Court of Appeals has clarified that the statutory presumption against joint custody in cases with a history of domestic abuse between the parties does not state that the presumption operates for or against any particular party. Thornton v. Bosquez, No. A18-0223, 2018 WL 6442311, at *5 (Minn. Ct. App. Dec. 10, 2018), rev. granted (Minn. Feb. 27, 2019). “Accordingly, a person who has committed domestic abuse may be awarded custody of a child, notwithstanding his or her commission of domestic abuse, if ‘all relevant factors’ indicate that such a custody award is in the child’s best interests.” Id.

Question: What are some examples of courts awarding joint custody despite domestic abuse?

Answer: Courts have awarded joint custody when the abuse was an isolated incident years ago, when both parents want what’s best for the child, or when denying joint custody would cause more harm than allowing it.

In recent years, case law has supported the approach now memorialized in the new best interests factor that does not end the analysis with a finding of whether domestic abuse occurred. In the nonprecedential opinion of In re Custody of J.W.V.H., No. A10-1490, 2011 WL 4530437, at *2 (Minn. Ct. App. Oct. 3, 2011), the court of appeals affirmed an award of joint custody despite an admitted incident of domestic abuse because “no pattern of domestic abuse existed, that the incident had occurred seven years earlier, and that [the mother] provided ‘no credible evidence … of any additional abuse.’” The parties’ “turbulent” relationship was also not deemed to be a bar to joint custody because “the parties’ difficulties getting along does not alone make a joint custody award erroneous.” J.W.V.H., 2011 WL 4530437, at *3. The district court found that the parties were “tiring of the battle,” “truly do want to do what they perceive is best for the minor child,” and, more significantly, found that the harm in awarding sole custody to the mother would be greater than the harm that might result from joint custody because the mother had a history of denigrating the father and not encouraging his relationship with the child. Id.

Question: When might courts award joint custody even when there’s a protection order?

Answer: Courts may award joint custody when the domestic violence didn’t affect the child or the parent-child relationship, and when the abuse doesn’t seem relevant to what’s best for the child.

In the nonprecedential opinion Kruchten v. Kruchten, No. A11-367, 2011 WL 4905636, at *2 (Minn. Ct. App. Oct. 17, 2011), the court of appeals affirmed a joint legal custody determination despite the mother having obtained an OFP against the father (with no findings) and an admitted history of abuse on the part of the father because “no evidence suggested that any domestic violence affected” the child or the parent-child relationship. The presumption against joint legal custody was overcome “[g]iven the context of the abuse and its apparent irrelevance to the best interests of” the child. Kruchten, 2011 WL 4905636, at *2. In Kruchten, while the trial court found that five custody factors favored the mother and one factor favored the father, it was not an error to award joint legal custody so long as the district court considered “the factors as a whole.” Id.

Question: What counts as domestic abuse for custody purposes?

Answer: Domestic abuse includes physical harm, making someone fear they’ll be physically hurt, terroristic threats, sexual crimes, or interfering with emergency calls – but it doesn’t include just verbal abuse or harassment without physical threats.

A father’s history of domestic abuse against the mother did not prevent him from gaining custody in Luedtke v. Luedtke, No. A04-2347, 2005 WL 3289383, at *1–2 (Minn. Ct. App. Dec. 6, 2005) when the record also revealed that the mother had a significant history of methamphetamine use, the domestic abuse had not adversely affected the children, and the mother’s methamphetamine use posed a threat to the children’s safety. In contrast, while both parties submitted “conflicting testimony” about the father’s methamphetamine use, the court of appeals affirmed the trial court’s finding that father had “only experimented with methamphetamine in the past” and that the previous use did not impact his ability to parent. Luedtke, 2005 WL 3289383, at *1.

In Bruechert v. Bruechert, No. A04-1566, 2005 WL 3291401, at *2 (Minn. Ct. App. Dec. 6, 2005), the court of appeals affirmed a district court decision to award joint legal custody, despite evidence of domestic abuse by the father against the mother, because the record demonstrated “that the parties historically have been agreeable decision-makers who have kept the best interests of the children foremost in their minds and whose communications lapsed only in the context of the acrimony of the dissolution.” While there had been abuse, the parties had “a history of willingness to work with neutral third parties in resolving disputes,” the parties’ child’s medical condition made sole authority in one parent detrimental to the child, and both parents had been “very much involved in making decisions that affect the children’s welfare, upbringing, and nurturing so that sole authority in only one parent would not serve the children’s best interests.” Bruechert, 2005 WL 3291401, at *2.

With this factor, the trial court is required to consider not just the effect of domestic abuse between the parents, but also the effect of domestic abuse between a parent and another individual. By adding the interaction between parents and other individuals, the legislature requires the trial court to focus on the environment in which the child will be placed and consider whether that is one that involves domestic violence. Domestic violence involving one parent could easily be as devastating as domestic violence involving both of them.

It is also important to distinguish the fact that the factor is limited to domestic abuse as defined in Minnesota Statutes section 518B.01. The statute defines “domestic abuse” as: (1) physical harm, bodily injury, or assault; (2) the infliction of fear of imminent physical harm, bodily injury, or assault; or (3) terroristic threats, criminal sexual conduct, or interference with an emergency call. Minn. Stat. § 518B.01, subd. 2(a). The statute does not include verbal abuse or other harassing conduct that does not cause, or inflict fear of, physical harm. While that behavior may be relevant to another factor, it would not come into play here. The court of appeals has indicated that it is still appropriate to consider “aggressive behavior” by one parent against the other in front of the child, even if the behavior does not constitute domestic abuse, under the language in Minnesota Statutes section 518.17, subdivision 1(a) requiring the court to consider and evaluate “all relevant factors.” In re Custody of N.O.K., No. A16-0570, 2016 WL 6570302, at *5 (Minn. Ct. App. Nov. 7, 2016), rev. denied (Minn. Jan. 25, 2017).

Question: Can someone get custody even if they committed domestic abuse due to panic or self-defense?

Answer: Yes, if the domestic abuse was more like panic reactions when trying to get away rather than attempts to control or intimidate the other person, and if the person has addressed underlying issues like alcohol abuse.

An example of a case where the presumption against joint custody was overcome despite domestic abuse is Popel v. Popel, No. A07-1623, 2008 WL 4552771 (Minn. Ct. App. Oct. 14, 2008). In Popel, the court of appeals approved of the trial court’s finding that the domestic abuse was predicated on the mother’s alcohol abuse, which the mother had effectively addressed, and because the domestic abuse “was not significantly motivated by [mother] seeking to exercise power and control over [father],” but instead was “the seriously inappropriate use of force to separate herself from [appellant] when she perceived [appellant] was seeking to control her actions.” Popel, 2008 WL 4552771, at *3. The court found these to be “more panic reactions … than attempts to either punish or intimidate [appellant].” Id. Further, “[t]he change in the relationship from the separation and divorce is likely to change the dynamic that led to [respondent’s] domestic violence.” Id. This was a case where the domestic abuse was perpetrated by the mother against the father, and occurred when the mother was leaving the home at the time of the parties’ separation and the father attempted to stop her. This case already incorporated the new best interest factor by analyzing the nature and context of the domestic abuse, as well as its implication on parenting.

Question: What if someone had domestic abuse and mental health issues but got help?

Answer: If someone successfully addressed their problems through therapy, hasn’t had any abuse incidents since separation, and the child is thriving with both parents, they may still get joint custody.

Another example is Rakos v. Rakos, No. A03-96, 2003 WL 21962982 (Minn. Ct. App. Aug. 19, 2003), where the court of appeals affirmed a trial court’s award of joint physical custody despite evidence of the mother’s past history involving domestic abuse and mental health issues. The father argued that the district court failed to give the domestic abuse sufficient weight and that the court apparently failed to consider the risk that the mother may engage in domestic abuse in future relationships and the effect this would have on their child. Rakos, 2003 WL 21962982, at *2. The court of appeals disagreed, finding that the record supported the district court’s finding that the mother had successfully addressed her problems through therapy. Id. at *3. Further, “[n]o domestic abuse had occurred since the parties’ separation almost two years earlier, and the prior abuse did not have any negative effect on [the child], who has equally split time between her separated parents for all of her cognitive life,” and the parents both agreed that the child had a “warm and loving relationship with the other parent.” Id. The court of appeals then found the most compelling support for the joint custody award was the fact that the child was “thriving under the existing arrangement that mimics joint physical custody.” Id.

Question: Can someone get joint custody if they only had one incident of domestic abuse?

Answer: Yes, if the domestic abuse was just one incident that wasn’t part of an ongoing pattern and was specific to a particular situation, it may not prevent joint custody.

A more recent example is J.S.S. v. G.I.S., No. A16-1334, 2017 WL 1210146, at *4 (Minn. Ct. App. Apr. 3, 2017), where the father rebutted the presumption against joint legal and physical custody because one incident of domestic abuse was “not part of a continuing pattern that would have negative implications for [the child’s] well-being” and was “situation-specific.”