If you are in the middle of a divorce or custody matter and you or your spouse has a pending criminal case, this could impact your domestic relations case. Having to deal with a pending criminal charge can affect anyone going through a divorce or custody case at the same time. To prevent a criminal case from affecting your divorce or custody case, you may want to consider hiring an attorney who practices in both areas of law.
Unfortunately, most people know that if their soon-to-be ex has a pending criminal case against them, this could give them a leg up in the domestic relations matter. There are also instances of poor judgment and criminal behavior that result in a pending criminal case that gives rise to a domestic relations case. Under either scenario, it is profoundly important to retain an attorney who knows how to navigate the severity of the criminal case but understands each decision in the criminal case may have on the domestic relations matter.
The Mandatory Protection Order
Most people do not know that a mandatory protection order is issued in any criminal case involving crimes of domestic violence or crimes against a person. If you have been charged with domestic violence crimes, your partner and even possibly your children will be on the mandatory protection order. For instance, if your children were present for the domestic violence incident, a court may sometimes add them as a protected party to the protection order. A mandatory protection order precludes you from any contact with the protected party or parties. This also forces you immediately out of the marital home in a domestic violence case. A mandatory protection order is valid and enforceable until the criminal case has concluded. This means the protection order remains in effect until the criminal case has been dismissed or your criminal sentence has concluded. Knowing the mandatory protection order limits is crucial because any violation subjects you to new criminal charges. A mandatory protection order is modifiable, but the protected party or parties must consent to the modification. Thus, if your soon-to-be-ex does not want to have any contact with you, then they need not consent to any modification.
It is also possible that once a mandatory protection order is issued in the criminal case that the protected party may institute a civil action for a protection order that would survive the criminal case. C.R.S. § 13–14–103. Although this is civil in nature, the repercussions of a permanent protection order are long-lasting and appear on a background check.
It is critical to have an attorney on your case that understands the process of modifying the mandatory protection order and defending against a possible permanent protection order.
Domestic Violence and Divorce
A pending domestic violence case may never relate to your divorce. Colorado is a no-fault state meaning the Courts do not care who is at fault for your divorce; this means even if the basis for the divorce is the domestic violence case, it still may not be relevant. This also means your spouse is not entitled to maintenance (sometimes called alimony) because of the domestic violence case. They would still have to show the Court they should receive maintenance under the factors enumerated in C.R.S. § 14–10–114, none of which consider whether domestic violence was present. However, in a domestic violence case, a mandatory protection order is issued, which may cause issues surrounding the allocated personal property and the marital home. It would help if you had an attorney skilled in negotiating creative ways to obtain your property. Another time domestic violence may be relevant is if your divorce also involves issues surrounding parental responsibilities.
Domestic Violence and Parental Responsibilities
Parental responsibilities are the orders related to the rights you have regarding your children. Often people use the term custody, but the law now refers to those same rights as parental responsibilities. Parental responsibilities comprise two things: parenting time (formerly known as physical custody) and decision-making (formerly known as legal custody). A court must allocate parental responsibilities in your divorce if it involves children. Or, if you are not married but share a child with someone, then the Court will allocate parental responsibilities once a party claiming parental rights files a Petition. In each instance, domestic violence is usually relevant to the proceedings because the legislature in 1999 amended C.R.S. § 14–10–124, which is the law pertaining to the best interests of your children. As part of that amendment, the legislature found domestic violence could be a factor in determining parental responsibilities. Thus, if you are charged with a domestic violence case, your parental responsibilities could be affected.
A domestic violence case could affect your parenting time if the Court finds you to be a harm to the child and/or the abused party. The Court must continue to use C.R.S. § 14–10–124 to determine what is in your children’s best interests. This could mean possibly less than equal parenting time or even supervised parenting time, depending on the facts of your case.
Decision-making is usually the most affected parental responsibility if the Court finds that domestic violence is present. Decisions for your children are divided into four major categories: medical, educational, religious, and extracurricular. If the Court finds by a preponderance of the evidence that domestic violence is present, then “[i]t shall not be in the best interests of the child to allocate mutual decision-making responsibility for the objection of the other party or the legal representative of the child, unless the Court finds that there is credible evidence of the ability of the parties to make decisions cooperatively in the best interest of the child in a manner that is safe for the abused party and the child. C.R.S. § 14–10–124 (emphasis added). This means with effective legal representation, you can show the Court credible evidence that you can engage in joint decision-making despite the evidence related to the domestic violence. Suppose the Court does not find credible evidence that you can engage in joint decision-making. In that case, this means your soon-to-be-ex can make any medical, educational, religious, and extracurricular decisions for your children without the need to consult you in coming to that decision.
Being charged with a domestic violence case is already scary and stressful, but the stress and worry only become intensified when a domestic relations case is also initiated. Hence, the importance of selecting an attorney with the expertise to handle both. This not only ensures that you are receiving the best advice across both cases, but it also saves you the time and money of hiring two attorneys.
About the Author:
Jamie Paine is an associate attorney at Griffiths Law. Jamie’s practice focuses primarily on domestic relations matters, but given her years of experience as a prosecutor, she helps our clients navigate their criminal law issues too. Jamie’s experience as a prosecutor helps her handle the most complex cases with a tactful strategy to achieve the best results.