The areas of family law and criminal defense frequently intersect when it comes to domestic violence matters. When a spouse or parent makes allegations of domestic abuse or child abuse, it quite often affects the judge’s decision about which parent gets what court-ordered parenting rights and responsibilities. In Colorado, a spouse or partner who has reason to believe they are in “imminent danger” due to the other spouse/partner may file a motion with the court for a temporary restraining order. A temporary restraining order is issued without a hearing or opportunity for the accused spouse/partner to respond or present any evidence that the allegations are untrue. After a temporary restraining order is issued, the parties must appear before the court within fourteen (14) days for a hearing on whether the temporary restraining order will be made a permanent protection order against the accused spouse or partner.
How Protection Orders Work
In Colorado, the term “restraining order” is used to describe temporary restriction against one person from contacting another, whereas protection orders are issued as an ongoing, permanent restriction against contact after a hearing or court appearance. The spouse or parent may request a restraining order based on assault or threatened bodily harm, domestic abuse, stalking, emotional abuse against the elderly or at risk party, and sexual assault.
Whenever a restraining order is issued by a judge for domestic abuse, the restrained party’s 2nd Amendment right to bear arms is restricted and the person must surrender any and all firearms in their possession or give them to someone else for safekeeping. This restriction will remain in effect for so long as the restraining order or protection order is in place. Possessing a firearm in violation of this restriction carries harsh criminal penalties. Once the restraining order or protection order is dismissed or removed, the restrained person’s 2nd Amended right is restored.
The spouse or partner, whether current or former, or attorney representing said spouse or partner, must (1) fill out, (2) verify/have notarized, and (3) file with the court a form/motion alleging the basis and reasons for the requested restraining order and providing all other information that is required. The completed form/motion is reviewed by a judge or magistrate who determines whether the allegations, if true, show that the requesting spouse/partner is in imminent danger from the spouse/partner against whom the restraining order is being sought.
It is not enough to simply file a motion stating that you are scared of the other person. The judge must find that it is reasonable for you to fear that you are imminent danger from the other person based on what is written by you, or your attorney, and acknowledge and verified by you under oath.
If the requesting party meets their burden of proof, then the court will issue a temporary restraining order against the accused spouse/partner. This does not mean that the accused person is guilty of what had been alleged by the person who requested the restraining order. The accused spouse/partner has the right to a hearing before a judge or magistrate within 14 days after the temporary restraining order is first issued.
Remember that in the event of an emergency, if you are in immediate or imminent danger, you should always call 911 first before calling the courthouse or an attorney for legal assistance.
Sadly, people sometimes make false allegations and improperly seek restraining and protection orders against their spouses/partners for a variety of reasons other than for safety and protection, for instance: getting the upper hand in a divorce or custody battle.
If you have been wrongfully accused of domestic abuse or child abuse by a spouse, partner, or co-parent, it is extremely important that you call an experienced family law or other attorney with protection order experience like Brian Boal to protect your rights, prepare your defense and represent you in court. Trying to represent yourself in this situation without any knowledge or experience with the court system can have serious negative, life-changing, consequences that are permanent.
Impact On Custody And Divorce
Perhaps the most significant way domestic violence and abuse impacts divorce and other domestic relations proceedings is the allocation of decision-making responsibility for the children. It there is credible evidence of domestic violence, recent laws require that judges give sole decision-making responsibility to one parent or the other, and cannot award joint decision making. Most often, it is the parent who was the victim of domestic violence that receives all decision-making authority for the children. This means that he or she will legally permitted to make all decisions about the children’s medical care, school, religion and/or spiritual upbringing, and extracurricular activities without consulting or getting the approval of the other parent.
The fact that a restraining or protection order has been issued must be disclosed in any divorce or child custody proceeding initiated by either spouse, partner, or co-parent within the next two (2) years. This requirement applies to both the restrained party and the protected party filing a new divorce, separation, or parental responsibilities case. Moreover there is an obligation on both parties to inform the domestic court if a restraining order or protection order is issued by another court during an open domestic relations proceeding.
There are many more ways domestic violence and abuse allegations impact divorces, child custody/parental responsibilities, and other domestic relations proceedings. Frequently the fact patterns in these cases are complicated and confusing, and it is difficult to gather and use the evidence you need in court to win at a hearing. Rules against hearsay and other complicated rules of evidence prevent much of what people want the court to know from ever being considered or heard by the judge.
If you’re serious about prevailing and being successful in court in cases involving domestic abuse and protection orders, hire an experienced domestic and criminal litigator like Brian Boal to represent you. Boal Law Firm, PC has extensive skill, resources, and experience in family law, criminal defense, and protection order aspects in cases involving domestic violence and abuse. Find out more by reaching out to us online.