New Legislation Regarding Domestic Violence
By Katy Ellis - Family Law Attorney with The Harris Law Firm
On May 14, 2013, the Governor signed House Bill 13-1259, which incorporates additional language regarding domestic violence, child abuse, and neglect into existing statutes. The bill officially recognizes the right of children to be free from domestic violence, child abuse, and neglect and their right to be emotionally, mentally, and physically safe when in a parent’s care. Although the bill modifies many statutes, some of the changes are particularly significant and should be noted by family law practitioners.
One significant change involves the approach that courts must take when
determining the best interests of a child. Under the previous version
of C.R.S. § 14-10-124, two of the many factors to be considered in
determining the best interests of a child were any history or incidents
of domestic violence or child abuse. The new bill requires courts to examine
those two factors first and provides additional guidelines for the court’s
analysis. Although still affording trial courts significant discretion,
the tone of the statute suggests that the legislature wants courts to
be more aggressive in limiting parenting time if a parent has committed
acts of domestic violence or child abuse. The new bill also clarifies
that a court may not consider a party’s acts to protect a child
from witnessing or experiencing domestic violence or abuse when it determines
that party’s ability to encourage the relationship between the child
and the other party.
One other significant change is not directly related to the domestic violence
or child abuse issues. The Bill now requires greater specificity in parenting
plans, including detailed procedures for parenting time exchanges and
communications between the parents. This should be a marked improvement
from the existing “form” parenting plan. Absent specificity,
parents often found themselves back in court trying to determine when
exactly parenting time begins and ends and to define the beginning and
end of a particular holiday. As family law practitioners are aware, there
can be great divergence across counties and between individual parents
regarding the answers to those questions.
One of the most significant changes involves the legislature’s modification
of C.R.S. § 14-10-129, concerning emergency motions to restrict parenting
time. Under the previous statute, if a parent files an emergency motion
to restrict the other parent’s parenting time; the other parent
may only exercise supervised parenting time until the court has a hearing
on the emergency motion to restrict. Under the previous statute, the court
was obligated to conduct a hearing within seven days of the filing of
the motion. The short turn-around for the hearing helped protect the other
party from unreasonable interference with parenting time and minimize
the disruption for the minor children. Under the modified statute, the
court now has fourteen days to conduct a hearing on the emergency motion.
Although this expansion is likely designed to accommodate the realities
of many counties’ dockets, it may also result in additional infringements
on parenting rights in high-conflict cases.
On a related note, the new bill modifies the statute regarding civil protection
orders and, as part of that modification, increases the jurisdiction of
the protection order court to award temporary care and control of any
minor children of either party for a period of up to one year. The previous
version of the bill only allowed temporary custody orders for a six-month
period. This change is likely also a reaction to the increasingly overwhelmed
dockets in some Colorado counties. The benefit of the change is that parties
who begin their case with a protection order hearing will not be stuck
in limbo while they wait for a temporary orders hearing in their dissolution
of marriage or allocation of parental responsibilities case. One possible
downside is that having a one-year order in place may provide an additional
incentive for the domestic relations courts to delay scheduling a temporary
orders hearing. On a practical note, the hearings in protection orders
cases typically involve less evidence and testimony regarding the best
interests of the children than temporary orders hearings in domestic relations
courts. Allowing a protection order court to enter orders for up to one
year may have significant ramifications for the children involved in these cases.
The new bill includes many changes to statutes that family law practitioners
routinely utilize, including several changes not included in this brief
summary. Anyone practicing in this area should read the new bill with care.
