Colorado Criminal Domestic Violence Law – The Impact of a Colorado Domestic Violence Case On Parenting Time

Colorado Criminal Domestic Violence Law – The Impact of a Colorado Domestic Violence Case On Parenting Time

In an excellent article drafted and distributed in 2010 by the Colorado State Public Defenders Office – the following excerpt addresses the impact of a Colorado Domestic Case on parenting and child custody determinations.

Parenting Time Following Divorce or Separation

– In determining parenting time following a divorce or separation, courts may consider:

Whether one of the parties has been a perpetrator of child abuse or neglect under C.R.S. 18-6-401, or under similar laws of any other state. C.R.S. 14-10-124(1.5)(a).

Whether one of the parties has been a perpetrator of domestic violence. C.R.S. 14-10-124(1.5)(a)*

– In allocating decision-making authority, if the court makes a finding of fact that one of the parties has been a perpetrator of 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. C.R.S. 14-10-124(1.5)(b).

– In allocating decision-making authority, if the court makes a finding of fact that one of the parties has been a perpetrator of domestic violence, then 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 the parties are able to make shared decisions about their children without physical confrontation and in a place and manner that is not a danger to the abused party or the child. C.R.S. 14-10-124(1.5)(b).

– If a parent has been convicted of any of a list of crimes, the other parent.or any other person who has been granted custody of or parental responsibility for the child pursuant to court order.may file an objection to parenting time. The offending parent shall then have the burden of proving that parenting time by such parent is in the best interests of the child or children. C.R.S. 14-10-129(3). The list of crimes is lengthy, but includes:

Any crime, the underlying factual basis of which has been found by a court on the record to include domestic violence.

Murder.

Sexual assault.

Unlawful sexual contact if the victim is compelled to submit.

Most crimes against children.

The Emergency Placement of Children in Colorado

– An agency shall not arrange emergency placement of a child with someone who has been convicted of:

Child abuse.

A crime of violence.

A felony involving unlawful sexual behavior.

A felony with an underlying factual basis involving domestic violence.

Violation of a protective order.

A crime involving homicide.

For additional information, see C.R.S. 19-3-406(4) and 12 CCR 2509-4:7.304.

– Once a court terminates a parent-child legal relationship, the child shall not be placed with an individual other than a relative of the child unless that individual is of \good moral character.. C.R.S. 19-5-104(1)

The Best Interests of the Child Standard in Colorado

C.R.S. § 14-10-124. Best interests of child.

(1) Legislative declaration. The general assembly finds and declares that 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, 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.

(1.5) 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 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 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;

(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;

(IX) Whether one of the parties has been a perpetrator of child abuse or neglect under section 18-6-401, C.R.S., or under the law of any state, which factor shall be supported by credible evidence;

(X) Whether one of the parties has been a perpetrator of spouse abuse as defined in subsection (4) of this section, which factor shall be supported by credible evidence;

(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. 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;

(IV) Whether one of the parties has been a perpetrator of child abuse or neglect under section 18-6-401, C.R.S., or under the law of any state, which factor shall be supported by credible evidence. If the court makes a finding of fact that one of the parties has been a perpetrator of 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.

(V) Whether one of the parties has been a perpetrator of spouse abuse as defined in subsection (4) of this section, which factor shall be supported by credible evidence. If the court makes a finding of fact that one of the parties has been a perpetrator of spouse abuse, then 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 the parties are able to make shared decisions about their children without physical confrontation and in a place and manner that is not a danger to the abused party or 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) If a party is absent or leaves home because of spouse abuse by the other party, such absence or leaving shall not be a factor in determining the best interests of the child. For the purpose of this subsection (4), “spouse abuse” means the proven threat of or infliction of physical pain or injury by a spouse or a party on the other party.

(5) Repealed.

(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.

(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 Domestic Violence Lawyer