In this episode of Children First Family Law, Krista provides an important introduction to what will be an ongoing conversation on the podcast: the complexities of domestic violence, child abuse, and child sexual abuse in family law cases and the current landscape of laws attempting to safeguard those at risk.
This introduction highlights the complexities of this area of family law and provides a solid foundation for understanding the issues. She also previews a series of thought leaders who will join the show in early 2025 to help unpack these important issues.
On this episode, Krista explains the differences between the dependency and neglect courts and family courts and the inability of family courts to terminate parental rights, even if there has been domestic violence or child abuse. She introduces Kayden’s Law, a Pennsylvania statute that aims to protect children, which then spawned federal attention and legislation, which then motivated Colorado to be among the first additional states to change its laws to better protect children from parents who commit DV and child abuse and child sexual abuse.
Krista explains Colorado’s leadership in the transformation of family court reform to better address domestic violence and child abuse, including laws in 2023 and 2024 that greatly change the protections regarding these issues in family courts. These laws have created a pivotal shift in defining domestic violence within legal contexts, including the importance of including children’s voices and better defining domestic violence to include aspects of coercive control. This episode advocates for a more compassionate family law system. It encourages listeners to actively engage with these reforms, creating an environment where children and those affected by abuse are genuinely heard and protected.
In this episode, you will hear:
- Exploring the complexities of family law related to domestic violence and child abuse
- Challenges victims face, such as fears of escalation and financial instability
- Differences between dependency and neglect cases versus domestic relations court cases
- Introduction of Kayden’s Law
- Colorado laws that elevate domestic violence, including aspects of coercive control, and attempt to get children’s voices in court
- The role of parenting plan evaluators and mandatory reporters in protecting children
- The importance of engaging with reforms for a more effective legal system that protects children
Resources from this Episode
www.childrenfirstfamilylaw.com
All states have different laws; be sure you are checking out your state laws specifically surrounding divorce. Krista is a licensed attorney in Colorado and Wyoming but is not providing through this podcast legal advice. Please be sure to seek independent legal counsel in your area for your specific situation.
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Domestic Violence and Child Abuse: Kayden’s Law Introduction Podcast Unedited Transcript
0:01:24 – Krista Nash
Greetings everyone. This is Krista Nash. Thanks for joining me today for this episode of the podcast. For those who are watching on video, you’ll see I am not in my normal location and that is because I’m at a conference this time in Orlando, florida. It is focused on building a great law firm really, and executing on vision, and so last year actually it was a year ago that I decided I was going to rename my firm, rebrand and really focus on how to help really create a dialogue and try to help change family law for the better, to help children really thrive.
So here I am again. I’m excited to see what I will learn and the things I will develop out of this conference. But it also is a great opportunity because it gives me some time to pause and this is a really important topic that I’m going to be addressing with you all today. So it’s nice to have some space to be able to do that thinking and so I hopefully can present this to you in a way that is clear. This is going to be the beginning of an important dialogue and I really think that a podcast about family law would really be missing an important elephant in the room and a very key topic for children if we didn’t address truly head-on the issue of domestic violence and child abuse At the start of 2025,. I am excited to tell you that I will be bringing on the podcast a series of guests, both national and local leaders, who will debate and unpack these very important dynamics that really are on the forefront of family law and are pretty controversial right now. Really, we’ll have two national leaders in this conversation. They are psychologists and they have varying perspectives on this issue. We’ll also have a judge from Arizona, who has a national presence in, discussing evidentiary and due process perspectives, and then some other people, like a local psychologist, discussing evidentiary and due process perspectives, and then some other people, like a local psychologist, discussing how he and I do cases together and how we manage these hard dynamics in the cases in which we work. I’ll also be talking to domestic violence experts and people who’ve gone through this. So I hope you’ll stay tuned for all of those very important episodes, and I will be bringing those to you after the holidays as we start January.
As I considered who to have on a show, though, because I didn’t want the podcast to go too far without addressing this issue, because it is so very important, and I don’t want to wait till 2025 to do that, as I considered who I could have on to provide an introductory perspective to this very important topic. The feedback I got actually is that I should do it, which is pretty humbling, really. But I decided to go ahead and do that because I have been speaking on this nationally and locally and I am teed up to do so as well in 2025. And so I think it does make sense for me to take a stab at explaining to you current trends and efforts to address domestic violence and child abuse in the family law courts. So first I’m going to give you a very brief background on the landscape that led to where we now find ourselves, and then I will explain what has occurred last year and this year on the legislative front. I really believe that if you’re at all interested in, or working on, or involved in, cases with children in domestic courts, you really will want to listen and check back for more information as things continue to evolve. It is critically important that we all understand and pay attention to this issue, and I think we all have an obligation to do the work to understand what is happening. I do apologize ahead of time, as it’s going to be a lot of information and a lot of law to digest, but I hope you’ll stick with me. I think you’ll leave far more informed about these really crucially important dynamics as background for those who are really not in law or don’t have much experience in this.
I want you to understand there are two different court systems that deal with the safety and well-being of children. There really are more than that, but the two I want to explain to you are the dependency and neglect system, to start. In that system, we have concerns of child welfare that gets submitted to the state and the state evaluates whether kids are safe, whether parents or a parent needs to be held responsible for failing to care for a child or for putting a child in danger or neglecting a child, and what to do about it. This is the court system that can get activated when Child Protective Services gets called or when you call 911 and say I saw something happening to a child. This is also where mandatory reporters have to call into. I’m a mandatory reporter in my child cases. Teachers are mandatory reporters, doctors lots of people are mandatory reporters, so that’s how these get triggered. Sometimes it leads to criminal charges. Sometimes kids are removed and they’re sent to foster care or a kin or relative placement.
There are often safety plans put in place and if a formal case opens for dependency and neglect, then the parent or parents have to work with caseworkers and a variety of people to learn to be better parents, and if they fail at that then sometimes the kids never return of people to learn to be better parents and if they fail at that then sometimes the kids never return. Importantly, the parties in that case are the people of the state or the county sometimes, versus the parents, and the state comes in in a parental way on behalf of society basically, and says you have to do better, you have to keep your kids safe, you have to at least be a passably good parent or else and these parents, they do have fundamental rights to be parents, but because they are alleged at least to have messed that up and the state has had to step in and say we’re taking over if you don’t get it together, parental rights actually can be terminated completely. That you’d have your parental rights potentially taken away completely if the proper steps are taken or the parents fail. So that is very different to the domestic relations court, which is the system that handles divorce, legal separation, allocation of parental responsibilities for even unmarried parents in conflict. There the parties are one parent versus the other. So sometimes we have other people involved, like grandparents. We call those interveners, usually meaning they’re intervening in the case, but importantly it is one individual versus another, not the state versus an individual. So it’s also a type of civil case. We have criminal cases, civil cases, in our system, but in this vein we are talking about a civil case between, not two businesses like you would normally have in a civil situation, or maybe a neighbor versus a neighbor, but a civil case, a parent versus a parent or sometimes a grandparent versus a parent.
These are the domestic courts. In deciding where kids will spend time and who makes decisions for them in a divorce, for example, parents have fundamental rights to be parents and these are big constitutional rights. The seminal case on this is called Troxel. That’s T-R-O-X-E-L and you will hear judges and lawyers and some articles and commentators use Troxel a lot in these conversations and essentially it stands for the proposition that parents have a fundamental right above others to take care of and see and make decisions for their children. So even if the parents are splitting up, there’s a pretty big expectation that both parents are going to be involved with kids.
The problem, though, comes that in many of these domestic cases, we also have a lot of kids in danger. They are not dependency neglect cases, necessarily, or they haven’t been labeled as such, but we have some very bad parents sometimes and we have some very bad allegations sometimes, and there’s some parents who maybe shouldn’t have a ton of parenting time or responsibilities. We frequently have one parent saying that the other is a terrible parent, unsafe, yells all the time, is a controller of finances, coercive and narcissist, a physical and emotional abuser. The person who is the target of that allegation basically often comes back at that saying no, no, the real problem here is that the other parent is an alienator. He or she is alienating me. She’s causing the problem that the kids are listening to a false narrative, the kids are enmeshed with the other parent, the parent is gatekeeping, spinning it all up, making false allegations, and so on.
So, as a result, domestic courts have tried to get people who can provide independent eyes and ears on the situation child advocates, really, of a bunch of different types of sorts and they’re trying basically to get underneath this when parents are attacking each other really, or there are allegations on the table sometimes not with a lot of evidence about whether kids are safe or not. So, when we get these child advocates involved, there’s a lot of concern, though, about what the training of these people is, what the biases of these people are and sometimes which has happened bad decisions are made and you know these child advocates don’t always do a good job. Then there’s a lot of understandable pushback as to how we go about protecting these kids in the domestic courts. So, with that framework, the key question now infiltrating the entire domestic court landscape across the country and really beyond is how do we balance parental rights in a fight between parents and the best interests of the children when there are allegations of domestic violence, child abuse and child sexual abuse, and or child sexual abuse? So enter Kayden’s Law.
Kayden was a seven-year-old little girl from Pennsylvania who, in 2018, was tragically killed by her father during court-ordered unsupervised parenting time which had been granted despite her mother raising safety concerns during the custody litigation. This led to legislation in Pennsylvania after her death, her mother being very key in pushing the legislature influencing the legislature to make changes to increase protections for kids in these domestic court cases in Pennsylvania. Later, there was a federal act called the Keeping Children Safe from Violence Act, which is also called Kayden’s Law, even though the original Kayden’s Law is really the main Cad Kayden’s law in Pennsylvania. This Keeping Children Safe from Violence Act went into effect in early 2022 federally through the reauthorization of the Violence Against Women’s Act. Now, those are basically suggestions that come with ties for money, because these are state issues, not federal issues, which means that not just Colorado, but every state has to essentially adopt this. But they tie money to it. A lot the feds do and it incentivizes states to ensure that kids, basically that we adopt what the feds are asking them to adopt. So Colorado basically later became the first state to adopt this law through its state legislature in 2023. And the federal law basically does a few things, and I’ll get into what Colorado’s does.
But the federal law incentivizes states to ensure that the child custody laws protect at-risk children in a few different ways. So, first of all, it restricts expert testimony to only those who are appropriately qualified to provide it. There’s a lot of debate about what that looks like, and that’s those child advocates, for example. And then, two, it’s limiting the use of reunification tools that in theory, or sometimes in reality, were used to put kids back with their abusers when they were used in the most negative ways, and I’m gonna explain that more thoroughly here in a little bit. And third, providing evidence-based ongoing training to judges, experts and court personnel more thoroughly here in a little bit. And third, providing evidence-based ongoing training to judges, experts and court personnel on family violence regarding child sexual abuse, physical abuse, emotional abuse, coercive control, implicit and explicit bias, trauma, long and short-term impacts of domestic violence and child abuse on children and victim and perpetrator behaviors. You can see that it had a lot of different pieces to it. Also, this federal act indicated that courts must consider evidence of past sexual or physical abuse, including protection orders that have been issued between in any direction, including arrests and convictions for domestic violence, which you also will hear called DV. So DV is domestic violence for sexual violence or child abuse of the acute by the accused parent.
All right, so this sounds like obviously a really great idea and very important law, and for sure it is. However, it’s very important to also recognize that the way these laws morph and grow can have unintended consequences that leave some serious questions as to how they get executed In Colorado. We have what is now codified in Colorado Revised Statutes 1410.127.5. That is now Colorado’s version of Kayden’s law and it’s become very important nationally because Colorado is a leader in basically adopting most of the federal law that I explained to you a second ago. So for me as a legal representative of the children in these courts really a best interest attorney I use this now as a very important tool in cases where I have factors that are basically leading to conclusions about domestic violence, child abuse and child sexual abuse. And it is doing really important things like it’s forcing better training of experts in court, it’s insisting on judges and the whole system taking domestic violence and other forms of abuse more seriously.
In fact, in this law the legislature declares right out straight up in the law that a child’s safety is the first priority of the court in a proceeding affecting the child’s care and custody. And this is a little bit different than saying that the parents’ rights are the most important thing, which is the criticism based on, essentially, troxell and a whole bunch of other cases that flowed from that that these courts were somehow putting those parental rights above a child’s safety. So we’re balancing those interests and we’re still not there. There’s a lot of work that we have to do, but that’s the tension that we’re working on. We’re also dealing with the tension of what can be proven versus what are allegations, and it would sometimes feel like a he said, she said situation when a family is breaking up and the kids are struggling and there’s reasons maybe for one parent not to have a visitation with the children or not to have much time. We’re always wrestling in these domestic courts between these interests, between a parent’s right and children’s rights, and really, that we’re in a court of law and there are evidentiary considerations that we need to consider. So you can see how this can be very, very dicey as we go forward.
So some other parts of the 2023 law also include some other things. So I mentioned before this reunification ban. This hinges on the issue of resistant or refusing kids who don’t want to see a parent, and in many cases, when a child is responding this way and refusing to see the other parent, disfavored parent begins alleging that the favored parent is alienating them or gatekeeping them. These are all terms you start to hear about. If they’re truly alienating them, you can think of it as pouring poison into the child to attempt to get the child to refuse and even hate the other parent.
Now I will say, though, parental alienation is a vastly overused term. It’s kind of like narcissism. It’s almost impossible for anybody in family law to have a consult with a parent and not be told hey, I’m sure you hear this all the time, but my spouse is actually a narcissist, a true narcissist, and we hear this a lot about parental alienation. Almost all cases I come on so many when there are resist refuse parental contact dynamics end up in a dynamic where we get told that there’s parental alienation. So, essentially, it is an extremely important dynamic in the co-parenting and parent-child relationship, but it’s also very, very overused, so we have to be careful. Generally, though, the idea is that the disfavored parent blames the other parent essentially for torching the relationship with the child, and many co-parenting battles hinge on that exact fight. Importantly, though, if domestic violence, or on an intimate partner and or abuse on a child directly occurred in the family, then there’s often a protective parent who is favored and an abusive parent who is disfavored, which makes sense, right.
In some cases, we also have criminal involvement, like a mother, for example, has called the police, the father’s been arrested and gone to jail and the domestic violence evidence is very clearly present in the divorce case. But far more frequent is a scenario where the victim of domestic violence does not call the police for a whole variety of reasons, including, you can imagine, fear of the person escalating. Fear of the person cutting off their money or maybe losing the job, which would also devastate the family. Fear that the person would call the victim a liar and an alienator and try to take the kids away. And we have lots of cycles of violence and apology and love, bombing and wooing and good behavior, only to have it become violent again and a variety of other coercive, controlling behaviors that lead a person not to report domestic violence.
In these situations, when a divorce or relational breakup occurs, that goes to court over the children and where the kids are going to live and who will take care of them and make decisions for them. The parents, often with the help of lawyers, go to war about these issues and courts trying hard to navigate the important troxal constitutional rights to a parent, to his or her children, and dealing with courts of evidence that must give due process to parents. They find themselves, these courts, in a bind about who to believe, how to sit on the bench and make orders that protect kids while also balancing these constitutional rights in the civil case between two parents. So one of the biggest tools we have in the domestic courts it’s important to understand in this reunification context is therapy, and that makes sense because broken relationships often can get healed or helped a lot therapeutically. Sometimes that’s therapy for a parent to get it together and be a better parent or deal with his or her issues, become a better parent. Other times both parents really need therapy, not necessarily with each other, but maybe with one therapist who can meet with each separately and help them learn to deal with co-parenting better and how each parent might be contributing in some unsettling and inappropriate ways to the ongoing bad feelings of a child toward a parent.
These are not abuse scenarios but these are other just dynamics in a family. That can happen a lot. But in other cases, you know, a parent can be genuinely being protected, being actually protective, knowing that there was domestic violence in the home and that the child has experienced that, leading to understandable and justifiable resistance and refusal of the child and understandable and justifiable protection by that parent in the domestic courts then spend sometimes years, many years in some cases, trying to navigate how to allow an on-ramp for parenting for that resistant parent, who sometimes is labeled as an abuser, and sometimes is labeled as an abuser and is an abuser, and sometimes is labeled as an abuser but isn’t an abuser which can be very, very difficult. One of the tools that has been used to try to reunify the resistant parent and the child is something called reunification or reintegration therapy, and one version of that is what has come to be called reunification camps, and some of these were downright awful and, in the worst cases, had kids being dragged off away from their protective parent and forced into these camps with the abusive parent. Other times, though, reunification therapies, and even intensives at some of these quote camps or sort of seminar kind of places, prove successful, giving the child and parent space and intensive therapeutic intervention to work on the relationship. Like many situations in our black and white thinking about what is good and what is bad, reunification camps, and reunification as a term, has been labeled bad and dangerous, and sometimes it really has been really bad and really dangerous. The psychologists who will be joining me for the podcast in January, for example, come at this with varying perspectives. They actually were the two who led what was called the peace talks regarding this issue, held at a national conference, so that will be a real treasure for us to hear from them in terms of what their perspectives are on all of these issues.
In Colorado, we now have reunification bans of sorts. There are guardrails so that the protective parent in a domestic violence or child abuse situation cannot be labeled as alienating or they can be found to be alienating, basically, and children in such cases now get more protections, not to be forced to have parenting time or engage with the abusive parent. The law last year also raised expectations and requirements, so this is the 2023 law for parenting plan evaluators Remember, these are the quote experts who come in, investigate a family. They do psychology testing, in some cases like psychological evaluations. They usually or should do home visits. They talk to the children and others who know the family and look at the paper, record and videos and audio files and things of that nature, and then they write a report. Sometimes these reports can be very extensive, sometimes a little bit less so, and then they are able to testify generally as to recommendations about what they believe the court should do regarding the children, and these people are now required in Colorado and other places that are adopting Kayden’s law, essentially that these people now have to have more training on domestic violence, child abuse and child sexual abuse. Also, I would note that the training requirements are a lot higher and they’re a lot more complicated to complete. For example, everyone who is doing the training meaning the trainers of the people who are teaching it must attest to have experience working with victims of domestic violence, not solely in a forensic manner, and a lot of great people doing the teaching have said you know what, forget it, I’m out, I’m not going to get into this fray, they’re asking too much of me, I’m putting my neck out too much, basically, and that’s making it even harder to find good training that qualifies for what is required.
The statute also says that the parenting plan evaluators must have their own experience working with victims of domestic violence, child abuse and child sexual abuse that is not solely forensic in nature, and forensic basically means for the purpose of court, and that is what a lot of especially attorneys who are doing this work they’ve only done work that’s forensic in nature or court in nature and not in any other way. So I think that it’s also very interesting that Colorado seemed to say that it was adopting the federal version of Kayden’s law seemingly entirely. But a deeper dive into the differences between the federal and the Colorado versions shows that Colorado actually dropped the word clinical from the phrase about the type of experience that parenting plan evaluators have to have. The federal version says that the evaluator must have clinical experience working with victims and the Colorado statute drops clinical. It just says that they have to have experience working with victims. This is likely to deal with the reality that in most states it is exclusively mental health professionals who are deemed qualified to do these parenting plan evaluations and those people generally have clinical experience working with victims, meaning in a therapeutic setting or various places such as that in a mental health role. But in Colorado we have an odd setup in which attorneys and other non-mental health professionals can do parenting plan evaluations if they meet the other requirements and training. That’s, I think, why clinical was dropped out of Colorado’s law. But it is very telling to me that clinical experience is what was indicated to be the best experience for this role and I personally at least, have decided that I am not going to do this work in my own practice because I do not believe that I, in my role as an attorney, can put my hand up and say that I am an expert in these fields.
I’ve had a couple other CFIs tell me that they think that CFIs are child and family investigators, that they think that, as long as the court deems them to be an expert, that they’re not saying they’re an expert themselves. But I think that’s mincing words, honestly, and I don’t feel good about that. I know that I’m not an expert in child sexual abuse, even though I’ve done a heap of training. I am not, and I don’t think I’m, an expert in domestic violence either or in child abuse. I have a different role as a best interest attorney, and my training is very, very important in helping illuminate and helping me advocate well for these children. But in terms of raising my right hand and taking the role of the expert on the stand, that goes too far in my book, for it’s definitely not clinical experience working with these victims and it’s, I think, short of being an expert at all. So I think practitioners need to be very, very careful about what they are signing on for before they state that they’re experts. It seems very, very risky to me to do that before they state that they’re experts. It seems very, very risky to me to do that.
Additionally, Colorado statute also uses the very broad language that applies when there’s any allegation of domestic violence, child abuse or child sex abuse. So that means the language says any allegation, and this is part of where the statute is getting a little bit attacked, because any allegation is just so, so broad. So there are different things that the courts are having to do to try to get evidentiary findings about whether this actually applies. But the problem is sort of in the timing of when we do that. In Colorado we do not generally have these evidentiary hearings early on to make a finding about domestic violence, child abuse or child sexual abuse. That would then result in a host of other things that would flow from that, and so we’re tending to do a lot of other things before the permanent orders hearing, where we’re bringing on therapists and things like that earlier in the case, and oftentimes we don’t have a finding at that point regarding whether domestic violence even applies. So the timing of these things in terms of how we approach it in a court of due process is also very challenging. Other states do it a little bit differently, and so it’s important that we unpack that over our time. As we start researching this more, the judge, who is going to be on the podcast in January from Arizona, will be speaking about this a little bit. It’s very important just to understand that it’s pretty ill-defined how to determine the veracity or truth of these allegations, and in that way, I think the statutes really are challenging. This is where we really need to do a lot of refinement, probably to make sure that we are handling cases with due process and evidence and making sure that we’re meeting people’s rights while also protecting children. So, moving forward, take a deep breath, and we’ll move to the next year of statutes.
So, just as we have been trying to get our arms around the implications of this 2023 law, we had another bill that made its way through Colorado’s legislature, and this one is known as House Bill 24-1350. And it alters a whole slew of statutes, and so, if you’re going to look it up, you should just go to the Colorado Legislative website and search for HB, for House Bill 24-1350, and you will find the act that is signed Because it’s getting codified or put into our laws in a bunch of different statutes. It isn’t one new law, so, essentially, the overall goal, though, of it is to improve quote standards related to court proceedings for allocation of parental responsibilities to keep children safe. Now, the original version of this bill included provisions that got a lot of attention because they were so controversial. For example, a provision that every child gets to be heard in court in a domestic relations case, that judges have to allow letters from children or interview them in chambers which means back in their offices, basically or they have to have input from child experts on what the kids want. Other provisions of the bill clamp down more on parenting plan evaluators, those evaluations, how they’re done, who does them, what they include and don’t include. The whole bill later got tamped down, but it’s interesting that that original bill had every single child being interviewed and I include that information for you so that you can understand how extensive some of these reform efforts are. Interviewing every single child in domestic courts would grind our system to a halt, damage. Many children Honestly, like the psychological associations, were very much concerned about what this would do to drag all these kids to court and it would cause likely a huge number of unintended consequences, which was basically the feedback that lots of people gave to the legislature. So thankfully that provision got modified Now. Getting children’s voices into court, I am all for, but there are a lot of different things we have to think about about how we do that and there’s a lot of work that we’ll be talking about over the coming months and years about how we best do that. Interesting internationally, there’s a lot we can learn as well about how different countries handle this and I hope to be unpacking some of that with you all as well.
Overall, the final signed version of the act that I told you about that you can find online. You can pull up that PDF has a bunch of different statutory changes applying to different laws, but some highlights I will tell you. First of all, the overall legislative declaration of this 2024 act says this family court reform is necessary to prevent the common occurrence of awarding parental responsibilities for minor children to perpetrators of violence, including perpetrators of intimate partner violence, child abuse and child sexual abuse. Therefore, the legislature finds it necessary to expand opportunities to ensure a child’s opinions are entered into the record and considered by the court when determining parental responsibilities, to consider coercive control by perpetrators of violence, and to clarify and expand the state’s role and responsibilities to ensure these standards are upheld. Okay, so I don’t know if I would consider this in my practice a common occurrence, that this has occurred and that’s a little fuzzy in terms of what that means, and that’s part of the challenge that some people have with some of these bills is that it really makes these very sweeping changes and it isn’t really clear how many people are being affected by this that are with these sort of unintended consequences.
Okay, so the things that are included in this that I want to highlight in this new law are that parenting plan evaluators must include a child’s wishes, if the child has expressed wishes, and must include all information acquired during the investigation about domestic violence and child sexual abuse, physical abuse, emotional abuse, coercive control, trauma and victim perpetrator, behavioral patterns and relationship dynamics, regardless of the manner in which the information was acquired, including by accusation, evidence of a criminal charge, deferred judgment or conviction or evidence of a protection order, and regardless of who presented the information, including a child. Okay, so think about that very, very broad. Any allegation made by anyone, even a child, needs to be included in this. All right, you can imagine just kind of how that could get a little out of control. So, yes, we do want to get underneath any kind of violence that has gone on, but there’s not a lot of filters on that. So again, it’s just challenging.
Then we have in our new law this the court now in its analysis of the best interests of the child which the best interest of the child is what pretty much every court has to do to analyze what’s best for a child, there’s a bunch of factors like the relationship with other people, the parents’ wishes, the children’s wishes In Colorado it says if they’re mature enough to have a independent, well-reasoned view isn’t about age in Colorado, in some states it is about age. Other best interests are their mental and physical health of people, of the parents and the children, their attachment to community and school and things like that, the ability of each parent to affirm the other parent. These are all there’s a whole list of them that are the best interests of a child factors. And now the law says in Colorado that the court shall give paramount consideration, so highest consideration, basically, to the safety and the physical, mental and emotional conditions and needs of the child and abused party. When the court finds, by preponderance of the evidence, that one of the parties has committed child abuse or neglect or DV, then there’s other things that flow from that. Okay, so giving the voice of the child paramount consideration and the safety, consider that kind of consideration All right.
Also, if the court orders unsupervised parenting time and there is any information, including an accusation by a child, that a parent has committed domestic violence, child abuse or child sexual abuse, the court shall make a statement in writing or orally on the record why unsupervised parenting time was determined to be in the best interest of the child, with paramount consideration given to the child’s safety and the physical, mental and emotional conditions and needs of the child. Also, upon a motion, the court means upon the request of anybody in the case, basically the child’s best interest attorney, if there is one, or a parent through their attorney, or if they’re not represented, then on their own motion. Motion is just a request of the court. Upon a motion, the court may interview the child in chambers Again, chambers means the judge’s office, not in the public courtroom basically to ascertain the child’s wishes as to the allocation of parental responsibilities. The court may permit counsel to be present. A record will be made that must be made part of the record in the case. The court shall make findings explaining reasons why the court granted or denied such a request.
Additionally, you know, here I just want to back up. It’s interesting. It says counsel may be present. Some of this you know you’ve got kids. Can you imagine a kid going in with a judge and parents, attorneys and, you know, having to make a statement about what that child wants? I mean, different places do it differently than this and I think this is going to play out as well as not very good for kids. So I really think we do need to be coming up with some better ways to get kids’ voices in in ways that genuinely show an independent view of that. That is short of making them come to talk to the judge, but the idea is that kids’ voices need to be heard. I’m all for that and agree that we need to find ways to do it. It’s just you can see how this would be fraught with some problems. Okay, then it goes on.
Additionally, the court, in interviewing a child, may seek the advice of professional personnel which is not defined. The advice of professional personnel which is not defined, just a professional personnel which must be made in writing and available to counsel of record for the parties and expert witnesses upon request, but must otherwise be confidential and must be sealed and not open to inspection except by consent of the court. Counsel may call for cross-examination of any professional consulted by the court. Now, I have not seen this invoked yet at all. I mean, I certainly have seen requests for kids to be interviewed and I’ve made those requests myself to have the judge do that. But I’ve never seen this last part come into play yet, where the judge is coming up with some professional personnel on his or her own, basically trying to get some more insight, I guess, into what this judge should do. It seems to me that that really should be the job of the attorneys and really that a better way to do this would be to appoint a best interest attorney for the kid, a child’s legal representative, who then would really. I think part of my job is bringing those kinds of expert professionals to court if we really don’t have the information that we need. I don’t really know if I agree with the idea that the judge should be sua sponte or on his or her own, seeking out professional personnel to evaluate this on his or her own. That just seems like it seems beyond. I’m not sure why the legislature did it that way. So I can’t really comment on that further other than to say I think it’s a little concerning and it’s a little unclear how this is going to be a little bit of a mystery how this is going to work, but I do think it is probably an attempt to give judges the ability to seek advice as needed within certain constraints that align, at least partially, with due process and rules of evidence. But I think that that section is a little bit challenging, so it’s yet to play out. In any cases, I’ve seen At its core, a very important dynamic of this conversation is that domestic violence is a lot deeper problem than just a physical fight in which police are called and someone gets bruised.
There are a lot more insidious but just as damaging forms of domestic violence, which is why a major part of legal reform has been to include definitions of coercive control as very important pieces and forms of domestic violence. So coercive control under the new Colorado law, for example, is extremely broad, and I’m going to read you the whole list of terms in the Colorado law, because it’s critical to understand what we’re talking about here, about what is considered to be domestic violence. So here it is, as used in this section. Unless the context otherwise requires, coercive control means a pattern of threatening, humiliating or intimidating actions, including assaults or other abuse, that is used to harm, punish or frighten an individual. Coercive control includes a pattern of behavior that takes away the individual’s liberty or freedom and strips away the individual’s sense of self, including the individual’s liberty or freedom, and strips away the individual’s sense of self, including the individual’s bodily integrity and human rights. Coercive control includes isolating the individual from support, exploiting the individual, depriving the individual of independence and regulating the individual’s everyday behavior. Coercive control includes, but it’s not limited to, any of the following, and then there’s a list Isolating the individual from friends and family.
Monitoring, surveilling, regulating or controlling the individual’s or the individual’s child’s or relatives’ finances, economic resources or access to services. Monitoring, surveilling, regulating or controlling the individual’s or individual’s child’s or relative’s activities, communications or movements, including through technology. Name-calling. Degrading or demeaning the individual or the individual’s child or relative on a frequent basis. Threatening to harm or kill the individual or the individual’s child or relative, including wearing, accessing, displaying, using or cleaning a weapon in an intimidating or threatening manner. Threatening to commit suicide or otherwise. Harm one’s own person when used as a method of coercion, control, punishment, intimidation or retaliation against the person. Threatening to harm or kill an animal with which the individual or the individual’s child or relative has an emotional bond. Threatening to publish the individual’s or the individual’s child’s or relative’s sensitive personal information, including sexually explicit material, or make reports to the police or authorities. Damaging the individual’s or individual’s child’s or relative’s property or household goods. Threatening the individual or the individual’s child or relative with deportation or contacting authorities based on perceived or actual immigration status, withholding essential documents required for immigration, or threatening to withdraw or interfere with an active immigration application or process, or forcing the individual or the individual’s child or relatives to take part in criminal activities or child abuse.
Okay, so that’s the Colorado law from last year or from this year, really from 2024. All of this is a lot to navigate, right? If you have stuck with me this long through this podcast, I’m sure you can see how these new laws can be really helpful and incredibly important, but also can be misused. Sometimes what happens is that good legislatures with good intentions write overly broad laws that have a lot of confusion when it gets down to implementation, and there’s a lot of genuine concern that our 2023 and 2024 legal changes will do that in Colorado, and it also isn’t unique to Colorado Efforts to bring Kayden’s law in some form and fashion to other states is happening nationwide and same kind of impetus is happening internationally, with domestic violence being elevated in our courts.
It’s incredibly important and it will protect children who are very at risk, but it also has the risk of being very misused. We are still in the very early stages of navigating how these changes to our laws will impact the family courts. My prediction, like I said, is that it’ll really help the kids in the worst situations, and that’s definitely true in my own cases where I come across situations of what I think are very sincere issues of domestic violence and child abuse, and I am so grateful to have these statutes to protect these children. But I also see it starting to be greatly overused and abused, in cases where the laws are inappropriately applied or they’re invoked to be used based on little to no evidence of abuse, even of those coercive controlling elements that are discussed in those definitions.
We are going to have to find a way to protect kids while not trampling fundamental rights to parent, and we will need to shore up the way that we handle evidentiary findings and I think even possibly altering some of the rules, for example about hearsay, which is an out-of-court statement presented to basically for the truth of the matter asserted. That’s giving me like PTSD from law school and that’s really for another time. But essentially, even I can’t bring statements of a child in to court without hearsay objections that are just kind of regular civil litigation constructs, and so that’s one thing I’m passionate about is figuring out ways to get these kids’ voices, in short of dragging them into court to face a squad of people who want them to state in front of a judge and potentially a bunch of counsel, so that their parents can hear exactly what they have to say. So you know, there’s just a lot, a lot that we need to do to think through this. So we’ve got to press the solutions forward for sure, forward for sure, and I will just say thank you to those the DV advocates and the legislators and the bench and the bar people who are really doing their best to navigate this controversial and challenging area balancing the rights of children to be safe, which really I think we all can agree is a moral imperative that has got to be priority number one, but also navigating well that parents have fundamental rights to parent a la Troxell, and balancing due process rights of a parent to have decisions made about his or her rights based on evidence presented in a court of law, not based on mere allegation or speculation.
These upcoming guests I’ll be bringing you in January I’m very excited to hear from and I hope you are too to just really help us all understand differing views so we can navigate this important conversation in a balanced way. We need to do much better by children. The question is how to best do so. Colorado is truly at the forefront nationally of these conversations and there is so much for us to discuss and understand. So I do invite you to this dialogue and hope you’ll be able to get some insight and provide some insight back. If you have thoughts, please reach out to me.