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Colorado Criminal Law – Domestic Violence Convictions & Custody Of Your Child

By H. Michael Steinberg Colorado Domestic Violence Criminal Defense Lawyer

Colorado Criminal Law -Domestic Violence Convictions & Custody Of Your Child – False allegations of domestic violence and child abuse begin to make sense when they are made in the context of a family law battle for child custody rights.

This article addresses the common practice of making allegations of domestic violence when it is clear that a difficult battle for custody is in the offing.

Understanding the Colorado Best Interest Of The Child Law – Colo. Rev. Stat. Ann. 14-10-124

Colorado’s “Best Interest of the Child Law (14-10-124 reprinted below) is a lengthy and complex law and a full review and analysis of the law would be impossible here.

However, some important points can be made in a summary format.

First, the law lists Domestic Violence as one of eleven “best interests” factors. In Colorado, joint custody is not awarded if the Court finds evidence of domestic violence unless the Court finds that the parties can make joint decisions in a safe manner with no physical confrontations.

Domestic Violence Is Also Called “Spousal Abuse”

Although the court is allowed to grant sole or joint custody, it will be assumed by a Judge that joint custody is not in the best interest of the child if there is a history of spouse abuse.. § 14-10-124(1.5)(b)(v).

Spouse abuse is defined as the proven threat of or infliction of physical pain or injury by a spouse on the other parent.

§ 14-10-124(4). A parent may object to visitation by the non-custodial parent if that parent has been convicted of any crime that includes an act of domestic violence that constitutes a potential threat or endangerment to the child.§ 14-10 129(3)(a).

Absence or Relocation

In Colorado a Judge is not permitted to consider a parent’s departure from the home to escape the abuse as contrary to the child’s best interest. § 14-10-124(4).

Custodial – Visitation Interference

Under Colorado law, It is a defense to the crime of “custodial interference” that the offender reasonably believed that his or her conduct was necessary to preserve the child from danger to his or her welfare. § 18-3-304(3). See my article on parental kidnapping.

The Right Of A Parent To Maintain Their Share Of “Parenting Time” Is Determined By This Law

Section 14-10-124(1.5)(a) lays out the factors that a Colorado Judge will use to limit or extend your right to see your child or children.

One of those criteria – or factors – is an accusation of DOMESTIC VIOLENCE.

Here is how the law defines domestic violence followed by the 11 factors that the Court uses:

(a) “Domestic violence” means an act of violence or a threatened act of violence upon a person with whom the actor is or has been involved in an intimate relationship, and may include any act or threatened act against a person or against property, including an animal, when used as a method of coercion, control, punishment, intimidation, or revenge directed against a person with whom the actor is or has been involved in an intimate relationship.

In determining the best interests of the child for purposes of parenting time, the court shall consider all relevant factors, including:

(I) The wishes of the child’s parents as to parenting time;

(II) The wishes of the child if he or she is sufficiently mature to express reasoned and independent preferences as to the parenting time schedule;

(III) The interaction and interrelationship of the child with his or her parents, his or her siblings, and any other person who may significantly affect the child’s best interests;

(IV) The child’s adjustment to his or her home, school, and community;

(V) The mental and physical health of all individuals involved, except that a disability alone shall not be a basis to deny or restrict parenting time;

(VI) The ability of the parties to encourage the sharing of love, affection, and contact between the child and the other party; except that, if the court determines that a party is acting to protect the child from witnessing domestic violence or from being a victim of child abuse or neglect or domestic violence, the party’s protective actions shall not be considered with respect to this factor;

(VII) Whether the past pattern of involvement of the parties with the child reflects a system of values, time commitment, and mutual support;

(VIII) The physical proximity of the parties to each other as this relates to the practical considerations of parenting time;

(XI) The ability of each party to place the needs of the child ahead of his or her own needs.

The Right Of A Parent To Maintain Their Share Of “Decision Making” Is Determined By This Law

Decision Making – the right to determine your child’s future is controlled by C.R.S. 14-10-124(1.5)(b). This section outlines additional criteria, in addition to the criteria outlined above, for a Colorado Domestic Relations Judge to consider when determining parental decision-making responsibility:

Here is the law – read it carefully to understand how the Judge will make his or her decision on this critical aspect of parental rights:

Section 14-10-124(1.5)(b). – Allocation of Decision Making Responsibility.

The court, upon the motion of either party or its own motion, shall allocate the decision-making responsibilities between the parties based upon the best interests of the child.

In determining decision-making responsibility, the court may allocate the decision-making responsibility with respect to each issue affecting the child mutually between both parties or individually to one or the other party or any combination thereof.

When a claim of child abuse or neglect or domestic violence has been made to the court, or the court has reason to believe that a party has committed child abuse or neglect, domestic violence, or sexual assault where there is also a claim that the child in question was conceived as a result of the sexual assault, prior to allocating decision-making responsibility, the court shall follow the provisions of subsection (4) of this section.

In determining the best interests of the child for purposes of allocating decision-making responsibilities, the court shall consider, in addition to the factors set forth in paragraph (a) of this subsection (1.5), all relevant factors including (above):

(I) Credible evidence of the ability of the parties to cooperate and to make decisions jointly;

(II) Whether the past pattern of involvement of the parties with the child reflects a system of values, time commitment, and mutual support that would indicate an ability as mutual decision makers to provide a positive and nourishing relationship with the child;

(III) Whether an allocation of mutual decision-making responsibility on any one or a number of issues will promote more frequent or continuing contact between the child and each of the parties;

As is clear from the laws outlined above – ANY allegation of domestic violence and/or child abuse will have an enormous impact on a Family Law Judge’s decisions regarding child custody, decision making and visitation.

Note: The Impact Of A Colorado Criminal Protective Order In A Criminal Domestic Violence Case

In Colorado, every criminal case implicates a mandatory restraining order/protection order (these are the same thing and are used interchangeably).Colorado Criminal Restraining Orders 18-1-1001

In ALL Colorado Domestic Violence Cases – the Judge WILL issue a protection order which will almost always contain the following orders:

Order you to immediately vacate your home if you live with the alleged victim;

Order you to stay away from any place the victim is likely to be, including her place of work or school;

Prohibit you from communicating directly or indirectly (through a third person) with the victim;

Prohibit you from possessing firearms, including hunting rifles, and any other type of weapon; and

Prohibit you from consuming or possessing alcohol.

The issuance of this criminal protection order will greatly impact your rights to obtain child custody and even the visitation of your child.

Some Quick Ways To Avoid Violating A Colorado Criminal Protection Order

If the so called “Protected Person” tries to contact you:

DO NOT engage or respond.

DO NOT respond to emails or texts.

DO save any evidence of the communication – (such as voice mail messages).

DO NOT answer if they call you.

DO NOT contact them if they call you or try to meet with you.

REMEMBER – that YOU are bound by the restraining order NOT the protected party – Don’t be lured into having contact with her if she initiates contact – she cannot give you authority to contact her – Only a Judge can do that.

REMEMBER – to be very careful – even if your children are not listed on the order – NOT to have contact with the protected party in an attempt to have contact with your children.

Summary and Conclusion – Colorado Criminal Law -Domestic Violence Convictions & Custody Of Your Child

If you are falsely accused in a Colorado Domestic Violence Crime and you have children – you can be assured that the criminal case will be used against you as described above. It is critically important to find an experienced Colorado Criminal Defense Attorney who will begin to defend your case immediately and that means coordinating the investigation and defense of your criminal with your Colorado Family Law lawyer.

The police often fail to speak to many potential witnesses and will assume your guilt. This is especially true in Colorado family violence cases. Our law firm will work closely with your Colorado Family Law Lawyer – to examine all of the evidence and all of the allegations carefully and provide a team based approach to mount an aggressive and successful defense .

What Follows Is The Key Law Referenced In This Article – Colorado’s The Best Interests Of The Child Law – 14-10-124

C.R.S. § 14-10-124 The Best Interests Of Child.

(1) Legislative declaration. While co-parenting is not appropriate in all circumstances following dissolution of marriage or legal separation, the general assembly finds and declares that, in most circumstances, it is in the best interest of all parties to encourage frequent and continuing contact between each parent and the minor children of the marriage after the parents have separated or dissolved their marriage. In order to effectuate this goal when appropriate, the general assembly urges parents to share the rights and responsibilities of child-rearing and to encourage the love, affection, and contact between the children and the parents.

(1.3) Definitions. For purposes of this section and section 14-10-129(2) (c), unless the context otherwise requires:

(a) “Domestic violence” means an act of violence or a threatened act of violence upon a person with whom the actor is or has been involved in an intimate relationship, and may include any act or threatened act against a person or against property, including an animal, when used as a method of coercion, control, punishment, intimidation, or revenge directed against a person with whom the actor is or has been involved in an intimate relationship.

(b) “Intimate relationship” means a relationship between spouses, former spouses, past or present unmarried couples, or persons who are both parents of the same child regardless of whether the persons have been married or have lived together at any time.

(1.5) Allocation of parental responsibilities. The court shall determine the allocation of parental responsibilities, including parenting time and decision-making responsibilities, in accordance with the best interests of the child giving paramount consideration to the child’s safety and the physical, mental, and emotional conditions and needs of the child as follows:

(a) Determination of parenting time. The court, upon the motion of either party or upon its own motion, may make provisions for parenting time that the court finds are in the child’s best interests unless the court finds, after a hearing, that parenting time by the party would endanger the child’s physical health or significantly impair the child’s emotional development. In addition to a finding that parenting time would endanger the child’s physical health or significantly impair the child’s emotional development, in any order imposing or continuing a parenting time restriction, the court shall enumerate the specific factual findings supporting the restriction and may enumerate the conditions that the restricted party could fulfill in order to seek modification in the parenting plan. When a claim of child abuse or neglect, domestic violence, or sexual assault where there is also a claim that the child was conceived as a result of the sexual assault has been made to the court, or the court has reason to believe that a party has committed child abuse or neglect, domestic violence, or sexual assault where there is also a claim that the child was conceived as a result of the sexual assault, prior to determining parenting time, the court shall follow the provisions of subsection (4) of this section.

In determining the best interests of the child for purposes of parenting time, the court shall consider all relevant factors, including:

(I) The wishes of the child’s parents as to parenting time;

(II) The wishes of the child if he or she is sufficiently mature to express reasoned and independent preferences as to the parenting time schedule;

(III) The interaction and interrelationship of the child with his or her parents, his or her siblings, and any other person who may significantly affect the child’s best interests;

(IV) The child’s adjustment to his or her home, school, and community;

(V) The mental and physical health of all individuals involved, except that a disability alone shall not be a basis to deny or restrict parenting time;

(VI) The ability of the parties to encourage the sharing of love, affection, and contact between the child and the other party; except that, if the court determines that a party is acting to protect the child from witnessing domestic violence or from being a victim of child abuse or neglect or domestic violence, the party’s protective actions shall not be considered with respect to this factor;

(VII) Whether the past pattern of involvement of the parties with the child reflects a system of values, time commitment, and mutual support;

(VIII) The physical proximity of the parties to each other as this relates to the practical considerations of parenting time;

(XI) The ability of each party to place the needs of the child ahead of his or her own needs.

(b) Allocation of decision-making responsibility. The court, upon the motion of either party or its own motion, shall allocate the decision-making responsibilities between the parties based upon the best interests of the child. In determining decision-making responsibility, the court may allocate the decision-making responsibility with respect to each issue affecting the child mutually between both parties or individually to one or the other party or any combination thereof. When a claim of child abuse or neglect or domestic violence has been made to the court, or the court has reason to believe that a party has committed child abuse or neglect, domestic violence, or sexual assault where there is also a claim that the child in question was conceived as a result of the sexual assault, prior to allocating decision-making responsibility, the court shall follow the provisions of subsection (4) of this section.

In determining the best interests of the child for purposes of allocating decision-making responsibilities, the court shall consider, in addition to the factors set forth in paragraph (a) of this subsection (1.5), all relevant factors including:

(I) Credible evidence of the ability of the parties to cooperate and to make decisions jointly;

(II) Whether the past pattern of involvement of the parties with the child reflects a system of values, time commitment, and mutual support that would indicate an ability as mutual decision makers to provide a positive and nourishing relationship with the child;

(III) Whether an allocation of mutual decision-making responsibility on any one or a number of issues will promote more frequent or continuing contact between the child and each of the parties;

(1.7) Pursuant to section 14-10-123.4, children have the right to have the determination of matters relating to parental responsibilities based upon the best interests of the child. In contested hearings on final orders regarding the allocation of parental responsibilities, the court shall make findings on the record concerning the factors the court considered and the reasons why the allocation of parental responsibilities is in the best interests of the child.

(2) The court shall not consider conduct of a party that does not affect that party’s relationship to the child.

(3) In determining parenting time or decision-making responsibilities, the court shall not presume that any person is better able to serve the best interests of the child because of that person’s sex.

(3.5) A request by either party for genetic testing shall not prejudice the requesting party in the allocation of parental responsibilities pursuant to subsection (1.5) of this section.

(4) (a) When a claim of child abuse or neglect, domestic violence, or sexual assault where there is also a claim that the child was conceived as a result of the sexual assault has been made to the court, or the court has reason to believe that a party has committed child abuse or neglect, domestic violence, or sexual assault that resulted in the conception of the child, prior to allocating parental responsibilities, including parenting time and decision-making responsibility, and prior to considering the factors set forth in paragraphs (a) and (b) of subsection (1.5) of this section, the court shall consider the following factors:

(I) Whether one of the parties has committed an act of child abuse or neglect as defined in section 18-6-401, C.R.S., or as defined under the law of any state, which factor must be supported by a preponderance of the evidence. If the court finds that one of the parties has committed child abuse or neglect, then it shall not be in the best interests of the child to allocate mutual decision-making with respect to any issue over the objection of the other party or the legal representative of the child.

(II) Whether one of the parties has committed an act of domestic violence, has engaged in a pattern of domestic violence, or has a history of domestic violence, which factor must be supported by a preponderance of the evidence. If the court finds by a preponderance of the evidence that one of the parties has committed domestic violence:

(A) It shall not be in the best interests of the child to allocate mutual decision-making responsibility over the objection of the other party or the legal representative of the child, unless the court finds that there is credible evidence of the ability of the parties to make decisions cooperatively in the best interest of the child in a manner that is safe for the abused party and the child; and

(B) The court shall not appoint a parenting coordinator solely to ensure that mutual decision-making can be accomplished.

(III) Whether one of the parties has committed an act of sexual assault resulting in the conception of the child, which factor must be supported by a preponderance of the evidence. If the court finds by a preponderance of the evidence that one of the parties has committed sexual assault and the child was conceived as a result of the sexual assault, there is a rebuttable presumption that it is not in the best interests of the child to allocate sole or split decision-making authority to the party found to have committed sexual assault or to allocate mutual decision-making between a party found to have committed sexual assault and the party who was sexually assaulted with respect to any issue.

(IV) If one of the parties is found by a preponderance of the evidence to have committed sexual assault resulting in the conception of the child, whether it is in the best interests of the child to prohibit or limit the parenting time of that party with the child.

(b) The court shall consider the additional factors set forth in paragraphs (a) and (b) of subsection (1.5) of this section in light of any finding of child abuse or neglect, domestic violence, or sexual assault resulting in the conception of the child, pursuant to this subsection (4).

(c) If a party is absent or leaves home because of an act or threatened act of domestic violence committed by the other party, such absence or leaving shall not be a factor in determining the best interests of the child.

(d) When the court finds by a preponderance of the evidence that one of the parties has committed child abuse or neglect, domestic violence, or sexual assault resulting in the conception of the child, the court shall consider, as the primary concern, the safety and well-being of the child and the abused party.

(e) When the court finds by a preponderance of the evidence that one of the parties has committed child abuse or neglect, domestic violence, or sexual assault resulting in the conception of the child, in formulating or approving a parenting plan, the court shall consider conditions on parenting time that ensure the safety of the child and of the abused party. In addition to any provisions set forth in subsection (7) of this section that are appropriate, the parenting plan in these cases may include, but is not limited to, the following provisions:

(I) An order limiting contact between the parties to contact that the court deems is safe and that minimizes unnecessary communication between the parties;

(II) An order that requires the exchange of the child for parenting time to occur in a protected setting determined by the court;

(III) An order for supervised parenting time;

(IV) An order restricting overnight parenting time;

(V) An order that restricts the party who has committed domestic violence, sexual assault resulting in the conception of the child, or child abuse or neglect from possessing or consuming alcohol or controlled substances during parenting time or for twenty-four hours prior to the commencement of parenting time;

(VI) An order directing that the address of the child or of any party remain confidential; and

(VII) An order that imposes any other condition on one or more parties that the court determines is necessary to protect the child, another party, or any other family or household member of a party; and

(VIII) An order that requires child support payments to be made through the child support registry to avoid the need for any related contact between the parties and an order that the payments be treated as a nondisclosure of information case.

(f) When the court finds by a preponderance of the evidence that one of the parties has committed domestic violence, the court may order the party to submit to a domestic violence evaluation. If the court determines, based upon the results of the evaluation, that treatment is appropriate, the court may order the party to participate in domestic violence treatment. At any time, the court may require a subsequent evaluation to determine whether additional treatment is necessary. If the court awards parenting time to a party who has been ordered to participate in domestic violence treatment, the court may order the party to obtain a report from the treatment provider concerning the party’s progress in treatment and addressing any ongoing safety concerns regarding the party’s parenting time. The court may order the party who has committed domestic violence to pay the costs of the domestic violence evaluations and treatment.

…

(6) In the event of a medical emergency, either party shall be allowed to obtain necessary medical treatment for the minor child or children without being in violation of the order allocating decision-making responsibility or in contempt of court.

(7) In order to implement an order allocating parental responsibilities, both parties may submit a parenting plan or plans for the court’s approval that shall address both parenting time and the allocation of decision-making responsibilities. If no parenting plan is submitted or if the court does not approve a submitted parenting plan, the court, on its own motion, shall formulate a parenting plan that shall address parenting time and the allocation of decision-making responsibilities. When issues relating to parenting time are contested, and in other cases where appropriate, the parenting plan must be as specific as possible to clearly address the needs of the family as well as the current and future needs of the aging child. In general, the parenting plan may include, but is not limited to, the following provisions:

(a) A designation of the type of decision-making awarded;

(b) A practical schedule of parenting time for the child, including holidays and school vacations;

(c) A procedure for the exchanges of the child for parenting time, including the location of the exchanges and the party or parties responsible for the child’s transportation;

(d) A procedure for communicating with each other about the child, including methods for communicating and frequency of communication;

(e) A procedure for communication between a parent and the child outside of that parent’s parenting time, including methods for communicating and frequency of communication; and

(f) Any other orders in the best interests of the child.

(8) The court may order mediation, pursuant to section 13-22-311, C.R.S., to assist the parties in formulating or modifying a parenting plan or in implementing a parenting plan specified in subsection (7) of this section and may allocate the cost of said mediation between the parties.

Colorado Criminal Law -Domestic Violence Convictions & Custody Of Your Child

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The reader is admonished that Colorado criminal law, like criminal law in every state and at the Federal level, changes constantly. The article appearing above was accurate at the time it was drafted but it cannot account for changes occurring after it was uploaded.

If, after reading this article, you have questions about your case and would like to consider retaining our law firm, we invite you to contact us at the Steinberg Colorado Criminal Defense Law Firm – 303-627-7777.

Never stop fighting – never stop believing in yourself and your right to due process of law. You will not be alone in court, H. Michael will be at your side every step of the way – advocating for justice and the best possible result in your case. H. Michael Steinberg is passionate about criminal defense. His extensive knowledge and experience of Colorado Criminal Law gives him the edge you need to properly handle your case

ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at:

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A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – please call 720-220-2277.

“A good criminal defense lawyer is someone who devotes themselves to their client’s case from beginning to end, always realizing that this case is the most important thing in that client’s life.”

You should be careful to make a responsible choice in selecting a Colorado Criminal Defense Lawyer. We encourage you to “vet” our firm. Over the last 40 plus years – by focusing ONLY on Colorado criminal law – H. Michael has had the necessary time to commit to the task of constantly updating himself on nearly every area of criminal law, to include Colorado criminal law and procedure and trial and courtroom practice.

Putting more than 40 years of Colorado criminal defense experience to work for you.

H. Michael works hard to get his clients the best possible results in and out of the courtroom. He has written, and continues to write, extensively on Colorado criminal law and he hopes this article helps you in some small way – Colorado Criminal Law -Domestic Violence Convictions & Custody Of Your Child.

Summary

Article Name

Colorado Criminal Law -Domestic Violence Convictions & Custody Of Your Child

Description

False allegations of domestic violence and child abuse begin to make sense when they are made in the context of a family law battle for child custody rights.

Author

H. Michael Steinberg