In many Family Law cases, such as divorces and child custody or parenting time disputes, there exists facts that show the presence of Domestic Violence or Domestic Abuse by one or both parties. Colorado law has specific provisions with respect to how Domestic Violence or Domestic Abuse is relevant in such Family Law cases. The most common situations where Domestic Violence or Domestic Abuse is an issue for the court occurs in parenting disputes. Parenting disputes occur when parents are not able to agree and a court must step in and enter orders
Here is a very important fact to understand in any Family Law matter where there exists Domestic Violence or Domestic Abuse: It is not necessary for a child or children to be present, or to have witnessed Domestic Violence or Domestic Abuse, for a court to consider this kind of evidence in a parenting dispute. The very fact that a parent may have engaged in such violent behavior or have a past pattern of behaving in such a way during the parties’ relationship, is sufficient to have a judge hear this kind of evidence. As the truthfulness or credibility of a parent as to Domestic Violence or Domestic Abuse must be determined by a judge, a skilled and experienced Family Law Attorney will guide you through this process well in advance of any hearing before a judge.
In the vast majority of parental responsibility cases, parents get along and can develop a Parenting Plan for the benefit of the children and the parents. However, there are occasions where parents cannot get along or resolve their parenting disputes. We see cases when parents cannot communicate effectively or when parties are unable to agree as which parent should be the primary parent, whether or not a parent wishes to leave Colorado with the children, disagreements about parenting time and holidays, and whether or not the parents can agree as to decision making, as well as, other significant disputed facts. Often times, when there is Domestic Violence, there is a direct link between that kind of behavior and what the judge will ultimately order in regards to such parenting disputes. This means that the presiding judge will have to determine from the evidence, whether or not Domestic Abuse or Domestic Violence has occurred between the parents. I have found that all judges view Domestic Violence, in these kinds of cases, very seriously.
A parent need not be convicted or receive a deferred sentence or some other disposition in order for a judge in the child custody case to consider such evidence. In all parenting cases, Domestic Violence will be an issue for the court to consider.
In all situations involving allegations of child abuse, domestic violence or domestic abuse, the Court’s determinations and rulings are based upon Colorado’s “best interests of the child” law, which is found in Section 14-10-124, C.R.S. The legal definition of, “Domestic Violence” is:
“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 measure of coercion, control, punishment,
Intimidation, or revenge directed against any person with whom the
Actor is or has been involved in an intimate relationship.”
When a District Court Judge or Magistrate hears evidence of Domestic Violence or Domestic Abuse in a child custody case, the judge has the discretion to make a finding as to whether allocating decision making jointly, is in a child’s best interests. As an example, after a hearing is conducted in which both parents testify, the judge has the authority to determine if there has been violence between the parties and whether the parents have been able to make, “decisions cooperatively.” If a judge decides that there exists credible evidence of such abusive behavior, joint decision making will not be in the child’s “best interests”. This means only one parent will be making all of the important major decisions, most likely covering the child’s health, education, spiritual upbringing and general welfare.”
Should a court find that one of the parties is indeed a perpetrator of Domestic Violence of Domestic Abuse, the Court can properly order that party to undergo a Domestic Violence Examination and a course of treatment. The judge has this authority even though the parent may have never been charged or convicted of a crime. The reports from a Domestic Violence treatment provider can be ordered to be given to the other parent and the attorneys.
Because the Court’s in Colorado are charged with the responsibility in child custody and parenting disputes to determine if a child’s safety is involved, judges tend to want evidence that supports allegations of Domestic Violence or Domestic Abuse. This is why it is critical to consider some of the following factors that judges look at in such cases:
- Did the reporter of Domestic Violence immediately contact police or call 911;
- Did the victim seek immediate medical attention and prove actual physical or emotional harm by submitting medical records or reports;
- Was a Temporary or Permanent Civil Protection Order obtained;
- Production of police reports;
- Produce witnesses, police officers, medical witnesses, etc. who can testify as to any injuries;
- Produce text messages, photographs, video recordings, audio calls to 911, etc.
- Other critical evidence that documents the occurrence of abuse;
Whether you are the victim or alleged to have committed a crime involving Domestic Violence, and share children with the other parent, it is extremely important to obtain experienced legal representation from a highly skilled lawyer so that your rights and the rights of the children are properly represented.