Decisions about where children spend their time and who gets to make decisions about them are supposed to be made in a way that puts the best interests of the child above all else. As advocates for children, our firm is always keenly aware of the factors that courts consider when reaching decisions that further a child’s best interests. Although we work to preserve and rebuild family relationships at Children First Family Law, there are some situations where family relationships must be conducted according to strictly structured rules and contact may need to be limited for the safety of the child.
Domestic violence is one of those situations.
There are new and recently evolving laws in Colorado that make this state one of the very best in protecting kids and parents experiencing domestic violence, including expanding the definition of DV to include coercive control, pet abuse, financial and emotional abuse, isolation, and other indicators of DV short of physical abuse.
Laws have also changed to give children more of a voice in court when there is DV and child abuse present. These are complicated new statutes and not all attorneys are well-versed in them, so be sure when you find a lawyer that the person can tell you what those new statutes are and how they can be used to help protect you and your children.
Domestic Violence Does Not Require a Criminal Conviction to Impact Custody Decisions
Section 14-10-124 of the Colorado Revised Statutes defines domestic violence as a violent act, or threatened violent action against someone in an “intimate relationship.” This includes actions that occur among spouses and former spouses, couples who are dating or who used to date, and couples who have had a child together.
A violent act or threat of violence used to control, punish, intimidate, coerce, or get revenge against someone in an intimate relationship is a common type of domestic violence. Allegations of domestic violence can be taken into consideration in custody decisions even if there has been no criminal conviction. Custody and visitation can be affected If the court finds by a preponderance of the evidence that either:
- A parent has committed an act of domestic violence
- A parent has engaged in a pattern of domestic violence, or
- A parent has a history of domestic violence
The standard of proof is lower than in criminal cases, where guilt must be proven beyond a reasonable doubt. A preponderance of the evidence generally means finding that it is more likely than not that an act occurred.
So, even if a parent was found not guilty of criminal charges of domestic violence, or if criminal charges were never filed, or even if there was never a police call ever made, a parent who has been the victim of threats or violent acts or DV as now defined more broadly in the statutes can still present evidence of the actions (toward both the parent and the kids) and the court can consider the presence of DV for the purposes of decisions about where kids live and who makes decisions for them.
What Happens if the Court Finds That a Parent Has Committed Domestic Violence?
If DV is found to have occurred, the offending parent may not be allowed to make major decisions about the child’s life unless the other parent consents or the court finds that parents are able to cooperate to make decisions in the best interests of the children and in a manner that is safe to the person abused by the other parent.
With regard to physical time with the kids, the court may consider putting conditions on parenting time to ensure the child’s safety. These conditions may include:
- Supervised parenting time
- An order limiting contact between the parents
- Requirements that exchange of the child occur in a protected setting
- Limitations on overnight parenting time
- Bans against consuming alcohol or controlled substances during parenting time or sometimes all the time
- Keeping the child’s and other parent’s address confidential
- Requiring child support payments to be made through the child support registry so that parents do not need to be in contact
In addition, the court can order any other conditions found to be necessary to protect the child or someone else.
Domestic Violence Cases Often Require Litigation
A parent who has been the victim of domestic violence needs to find an attorney who is prepared to litigate effectively to protect the child’s best interests and everyone’s safety. At Children First Family Law, we advocate on behalf of children, so we do not represent parents in these types of cases. We cannot even make recommendations for legal counsel for parents because that could be seen as creating a conflict of interest if we were brought in to protect the child’s best interests.
Our goal here is to provide some basic information and resources to point you in the right direction so that you can move forward safely to a positive outcome that puts your child’s well-being ahead of everything else.
We invite you to check out our resources including our podcasts and blogs. For some cases, we might be the right attorney to represent your children. Please consider reviewing information about our role as Child’s Legal Representative for more information about this option.
To find the right attorney to protect your interests in this type of situation, you might consult the Colorado Bar Association or other lists of attorneys such as Super Lawyers for a list of family law attorneys practicing in your area. You also could contact domestic violence advocates to ask for references to attorneys.