What Kind Of Evidence Do I Need That The Other Parent Is A Perpetrator of Domestic Abuse, or Has An Alcohol or Drug Problem?

Often times clients will ask me, “What kind of evidence do I need that the other parent is a perpetrator of domestic abuse, or has an alcohol or drug problem?” Well usually that means that there must be some sort of objective evidence. In other words, you just can’t come to court and say I believe the other parent has a meth problem, or I believe the other parent has an alcohol problem. You need to have some independent evidence of that.

Like what? Well it usually involves maybe a conviction for DUI, a drug possession situation, photographs or evidence independently that there were drugs in the house, that a parent left when children there.

The other kinds of evidence that is important would be if a parent is saying that the other parent is dangerous, because they have an anger or domestic violence problem. Is the number calls that the police have responded to the house, or home where the family has lived. You would get the police reports, or the police call reports to show the number of calls, and how often the police have come. Has there been a conviction for harassment or domestic violence?

These are critical factors for the court in any kind of custody case. You’ll find that a lawyer who has a lot of experience in taking these cases to court and appearing in front of the judge, is going to know and be able to tell you what kind of evidence is really going to be significant that a court will rely on.

What To Do When A Child Removed or Taken Across State Lines

What you should do when you have child custody orders from another state, and let’s say that the parent who has visitation is here in Colorado and the other parent is not returning the child. What do I do then?

You’ll find that the police here in Colorado are not going to act on another court order from another state unless a Colorado judge has authorized the police to do something.

We’ve been very successful in getting children back to their lawful custodial parent when this happens. The process involves registering a foreign decree, that’s what it’s called, from another state into Colorado so that a Colorado judge can take what they call “judicial notice” of the child custody orders and enter orders for the police to assist you in getting the child back.

It’s a two-step process. Step one is to register the foreign decree from the other state and, two, to seek the Colorado courts ruling that would allow you to use law enforcement in the state to help you get the child back.

How do I get my child back from the other parent when I don’t have any court orders?

Today I want to discuss with you a frequently asked question that parents raise, and that is, “How do I get my child back from the other parent when I don’t have any court orders?” Typically what happens is that if parents are married, they’re going to file a divorce action, and the court’s going to then support the orders in the divorce, but when parents aren’t married, there’s an allocation of parental responsibilities action that has to be filed. If you have no court orders entered, and let’s just say that the other parent and you have an agreement where you’re going to share the parenting time and that other parent says, “Well I decided that we’re going to move to Denver and I’m going to keep the child.” What do you do? No court orders.

My advice is that you immediately seek to file the petition. It’s called a petition for allocation of parental responsibilities, so that a judge can establish some orders because without court orders, you’re not going to be able to have a court get a child back into your care or shared parenting care. I want to discuss with you what parental kidnapping or an abduction is. In order to establish that there’s been parental kidnapping or an abduction, there must be some sort of legal action that’s been filed, preferably a court order is in place, or a summons. Let me tell you what that is.

A summons is what would be served on the parties. Both parties would be bound by a summons and it states that a child cannot be removed from the state of Colorado once an action is filed. What this means is that if you had filed the divorce case and you have served the other party, or you filed a child custody case, like a parental responsibilities action, and you’ve served the other party, you’re going to have the process server serve them with a summons that includes an automatic injunction that prohibits that other parent from taking the child away from Colorado without a court order. A parental kidnapping case or an abduction case means that a parent has violated that court order. A violation of that court order means that you could get attorney’s fees against the other parent, or sanctions against that other parent. The police typically are not going to act unless a judge in Colorado has issued an order saying that a parent has violated a lawful Colorado order that a child not be kidnapped, removed or abducted.

One other important feature to mention. An abduction of the child is actually two things. The wrongful taking of the child. Let’s suppose you have parenting orders and it says every other weekend, and the other parent shows up and takes the child out of school on a Wednesday. That’s an abduction. Let’s say that the other parent is supposed to return the child to your care on Christmas Eve at 4:00 and that parent says, “Forget it. I’m not giving the child back.” That’s called a wrongful retention of a child and that’s also an abduction of a child and you should hire an attorney to immediately file an emergency motion to get the child back.

Information About Attorney Conduct

Lots of clients ask questions about, “What do I do when I’ve had an attorney working on my case and the attorney is not returning my phone calls, not sending me email responses, and I have no idea what’s going on in my case?” It could be a divorce case, a legal separation, a child custody case, what have you.

My response to that is this. Whenever you’re hiring an attorney in any of these kinds of matters, you need to be comfortable with your lawyer, and you need to discuss, going into the case, how that lawyer operates. Is the lawyer going to return emails promptly? What happens if the lawyer is in court or mediation? How will I get my questions answered?

At The Law Office of Gordon N. Shayne, we offer a 24/7 phone line, and I have very experienced staff and a paralegal who’s been involved in family cases for many, many years, who will answer a lot of the questions that clients have while I’m in court or unavailable, and if you are not getting the proper service from your attorney, or your attorney is telling you what to do rather than you telling your attorney what you want to see happen, maybe it’s time to consider changing lawyers to someone you’re more comfortable with or can work with.

If you are in that situation and you are looking to hire an attorney to jump in and take over your case, remember to bring as many of the court documents with you when you see the new lawyer, so that that lawyer is not surprised by any of the litigation history or upcoming court dates.

Contact us today for more infomation or to schedule a free consultation.

401k/ Retirement Accounts

Let’s discuss what happens with a retirement account or a 401K account and how that may be involved in your divorce or legal separation or even in a post-decree matter. A post-decree matter means that you’ve already gone to court, you have had a judge enter a decree or a legal separation or a decree of dissolution of marriage, and in that decree of dissolution of marriage, one of the parties or both of the parties had IRAs and retirement accounts or a 401K that had to be divided. In a post-decree case, most often what we see is that somebody has not done what they’re supposed to do. As an example,let’s say that IRA accounts were to be divided 50/50 in the divorce and husband had a $200,000 IRA account and he was supposed to give wife half or $100,000 of that and he didn’t do that and you want to go back to court to enforce those orders. That’s a post-decree issue.

In the typical divorce case where there are 401K or retirement accounts, the court is going to divide those accounts down the middle. That’s pretty much what you can expect. Even though there is no law that says that the court has to divide everything 50/50, generally speaking, a marriage of any kind of length, 4 or 5, 6 years or longer, a court is going to take into account who’s contributed to the 401K and whether or not that was a contribution made over the course of the marriage and that’s how it’s going to be divided.

Contact Shayne Law if you have any questions.

Preparation For A Consultation

We offer free consults in this office to potential clients who are looking to hire an attorney. Obviously, we can’t give free advice to everyone, but for people that wish to come in and meet with us, and get an idea of what is expected, and what kind of a case they’re dealing with, whether it’s a divorce, a legal separation, a post-decree modification of orders, or a parental responsibilities case, I believe that it’s important to have some preparation before you meet and have a discussion with an attorney that you’re interviewing.

As an example, if you’re meeting with an attorney to discuss a divorce, you should have a pretty good idea of what the financial issues are in your case, and be prepared. You should take a look at the tax returns. You should take a look at the investments, and the retirement accounts. You should have an idea of what your house is valued at, what the mortgage payoff would be. Are the cars paid off, or are there loans? What about insurance questions? Is there going to be health insurance? These are the kinds of things that you can look at before you have a meeting with the attorney, so that you can have an intelligent discussion and get your questions answered during your consultation.

Contact Shayne Law if you have any questions.

Establish Custody/ Parenting Time

Often times clients will ask “How is a judge going to decide parenting time? What is parenting time?” Parenting time is established by a statute called the Best Interests Statute. It’s Colorado revised statute 14-10-124. If you take a look at the statute it’s got different parts to it. The first part you’ll see is a section that deals with decision making and that’s important for you to understand. If there’s been domestic violence in the relationship that can be established because if domestic violence has been established against one of the parents, then decision making will be awarded to the parent who is not the perpetrator of domestic violence.

The other way that parenting orders are entered is when the court considers all of the factors in the best interests statute and that would include parenting time, holidays and how the child is picked up and dropped off for parenting time and when that is to occur. A typical custody case involving either a divorce, a legal separation or an allocation of parental responsibilities is going to require the parties, the lawyers to get together. Go over the best interests statute and determine what kind of a parenting plan is fair to the children in the case.

It’s not something that’s fair to the parents, but it’s in the best interests of the children. It’s also not based upon fitness of parents, although that issue certainly is relevant for the court and an example of that is whether either parent has a mental illness or an emotional illness that may affect parenting or something like substance abuse or alcohol use, which is a factor in what the court does for parenting time.

Contact Shayne Law if you have any questions.