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

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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.

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

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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

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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

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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.

Custody Rights For Grand Parents/ Non-Parents

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Today I want to talk to you a little bit about grand parenting rights and circumstances where non-parents can have custody rights or parental responsibilities as they’re called in Colorado. Years ago, there was a case that was decided by the United States Supreme Court called Troxel versus Granville. You should look it up and read that case. It’s a very interesting case which says that the Supreme Court said that parents have a fundamental liberty interest in the care and custody of their children, but there are exceptions.

What do you do when two parents have been involved in drug use for an extension of time and they’ve given the young children to one of the grandparents? Had a similar case like that in the last year where both parents were sent away to prison, one to a state prison, one to a federal prison and the grandparents were raising the children because the parents were unavailable and unable to raise the children. The law in the state of Colorado says that if that’s what is the situation, a grandparent or grandparents or non-parents can file a petition for allocation of parental responsibilities to obtain the very same rights that a parent would have with respect to decision making and parenting time, holiday parenting time as would parents as if parents had filed the case.

This gives grandparents custody rights. Oftentimes in these cases, parents do no agree that the grandparents should have custody rights and that sets up a disputed legal case between grandparents and natural parents over the best interest of the children. You can also have non-parents like an aunt or an uncle or a friend who has had custody of children file a parental responsibilities case because of the amount of time that they’ve provided care for a child and how the biological parents have relinquished the care to a non-parent like an aunt or an uncle. So you should consult with an attorney to determine whether or not you as a grandparent or a non-parent have such rights and can file a parental responsibilities case.

Contact Shayne Law if you have any questions.