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Colorado Custody and Domestic Violence

From the time I was a young child, perhaps due to having sisters, I was always told, “Boys don’t hit girls.” Sadly, over the years I have spent as a Denver family law attorney, I have come to learn that in fact, sometimes they do. Domestic violence is an unfortunate fact that comes into play in some divorce or custody cases. Whether in such a case, or in a restraining order setting, there can be lasting legal ramifications for both sides.

Domestic violence, or acts likenable to such, can be verbal or physical. Some Denver area courts find that even a systematic pattern of one person controlling the other to be domestic violence.

Colorado Statute, specificially, C.R.S. 14-10-124 (1.5)(b)(V) indicates one of the factors in a custody determination is domestic violence. Specifically, this section states, “Whether one of the parties has been a perpetrator of domestic violence, which factor shall be supported by a preponderance of the evidence. If the courts makes a finding of fact that one of the parties has been a perpetrator of domestic violence, then it shall not be in the best interests of the child to allocate mutual decision-making responsibility over the objection of the other party or the legal representative of the child unless the court finds that the parties are able to make shared decisions about their child without physical confrontation and in a place and manner that is not a danger to the abused party or the child.”

What does this mean? In Colorado, the term “custody” is no longer used. Rather, in any divorce or custody case, the term is now called “parental responsibility.” Custody used to be a two faceted term. “Physical custody” related to the party with whom the child resided a majority of the time. “Legal custody” related to the making of major decisions regarding the child, such as schools, doctors, medical care, etc. The term “parental responsibility,” though containing all aspects of what was once “custody,” including visitation, is now generally used by Colorado family law attorneys to mean decision making for the child.

Though most Colorado or Denver area courts generally favor joint decision making, domestic violence can affect such a determination. As a general rule of thumb, when one party has committed domestic violence against the other, our firm will often advise the victim that “sole” decision making to them is appropriate. This is because of the C.R.S. 14-10-124 presumption, which is rebuttable, that joint decision making is not appropriate due to the domestic violence.

In this day and age of e-mail or text communication, courts can certainly fashion a plan for joint decision making which is carried out electronically, thereby keeping the parties from engaging in actual in-person or phone communication. At the same time, courts take domestic violence seriously, and there is a reasonably good chance that the perpetrator will end up without any power to make major decisions regarding his or her child. In light of statute, victims should know their rights related to this topic and those who commit domestic violence should know the legal ramifications that will flow into any custody case or divorce with children.

From time to time we read about celebrities who engage in domestic violence, such as the recent charges against actor, Mel Gibson. According to a recent Today Show story, Mr. Gibson has pled “no contest” to charges that he battered his former girlfriend. This may likely have lasting ramifications on his also pending custody case. Though California is not Colorado, were his custody case here, Mr. Gibson might find himself divested of decision making authority.

Decision making authority does not necessarily equate to visitation, called “parenting time” in Colorado family law circles. Domestic violence can also affect parenting time as well, particularly if the perpetrator cannot engage in a safe fashion at parenting time exchanges or if a court or experts determine that the same anger or behavior will be used on the child.

There are also instances in which one person commits domestic violence with a new partner, after his or her divorce or custody case is completed. This can have an effect on that case, particularly if the attack on the new partner occurs during parenting time.

Though I could write a million more pages I will stop. The point is that domestic violence is a horrible syndrome we as Denver area attorneys see. People in custody or divorce cases should know their rights or the ramifications of their actions. People should stop and think before acting. People should be protected, and the law can provide such in custody cases.