I believe my child’s other parent is an immediate danger to my child. What can I do?

You can request that the court restrict that parents parenting time under C.R.S. 14-10-129(4). To make such a request you must file a motion alleging a child would be in imminent physical or emotional danger if the parent were allowed to exercise their parenting time. Upon the adequate allegation in your motion, the court will immediately restrict parenting time, to supervised parenting time, until it can hold a hearing on the motion, which must be conducted within 14 days.  At that time the court will require evidence that supports the allegations in the motion.

Remember that parenting-time is the right of both the parent and the child, so it is a very serious matter to restrict someone’s parenting time and courts do not take this decision lightly. Also if you are found to have filed such a motion frivolously, without grounds, the court can order attorney’s fees or even restrict your parenting time as a result. Thus, while urgent action is often required in these situations, it is a good idea to consult an attorney if possible, before filing a motion to restrict parenting time.

I’m about to married, how should I prepare?

Planning a wedding can be exciting and fun, but preparing for marriage is about more than a wedding. Perhaps you are attending church or personal marriage counseling sessions or a pre-marriage course. These are often helpful for couples planning their future. However, while planning for marriage it is also a good idea to contemplate the potential the marriage could result in divorce. This may seem unromantic or pessimistic, but it is something every couple should at least contemplate because contemplating this possibility can help you determine if a pre-nuptial agreement is right for you.  Pre-nuptial agreements are a particularly good idea if one or both parties enter the marriage with property or even debts that they want to ensure are not treated as martial property in a divorce. However, pre-nuptial agreements cannot address child custody and a court will treat any such provisions as void. Smith, Shellenberger, and Salazar LLC, can help you draft the appropriate agreement for your situation.

Also note that having a pre-nuptial agreement does not automatically mean it is enforceable, or that it applies to all the property your spouse claims it does in a divorce. If you believe that your pre-nuptial agreement might not be enforceable or have concerns about the enforcement of the agreement in an upcoming divorce you should consult an attorney as these are often difficult legal arguments to understand and to raise in court. If you have questions about the enforcement of a pre-nuptial agreement in an upcoming divorce please feel free to schedule a consultation with our attorneys.

 

What happens if my ex-spouse wants to move with our child?

Many people find that after a divorce they need to relocate out of state for work or personal reasons. Obviously such a move usually has a significant impact on the parties parenting plan. Because it has the potential to negatively impact the other parent’s relationship with the child the court has to balance the party with primary parenting time’s right to move with the other parent’s right to parenting time with their child.

When the majority parenting-time parent, or a parent with equally shared parenting time wishes to relocate with the child to a location that substantially changes the geographical ties between the child and the other parent, C.R.S. 14-10-129(1)(a)(II) dictates that parent seeking relocation must, give the other parent and the court notice including:

  1. Written notice of the intent to relocate,
  2. The location where the party intends to reside,
  3. The reason for the relocation, and
  4. A proposed revised parenting plan.

 

If the other parent is opposed to the relocation or the new parenting plan, that parent will file its opposition with the court. Regardless the court will hold a hearing on the relocation, to determine whether the relocation and parenting plan proposed are in the child’s best interest.

Pursuant C.R.S. 14-10-129(2)(c) the court considers a number of factors in a relocation hearing including:

  1. The reasons why the party wishes to relocate with the child;
  2. The reasons why the opposing party is objecting to the proposed relocation;
  3. The history and quality of each party’s relationship with the child since any previous parenting time order;
  4. The educational opportunities for the child at the existing location and at the proposed new location;
  5. The presence or absence of extended family at the existing location and at the proposed new location;
  6. Any advantages of the child remaining with the primary caregiver;
  7. The anticipated impact of the move on the child;
  8. Whether the court will be able to fashion a reasonable parenting time schedule if the change requested is permitted; and
  9. Any other relevant factors bearing on the best interests of the child.

What can I do to protect myself from domestic violence?

Whether you are married or not the best thing you can do to protect yourself from domestic violence is to leave the situation and contact local law enforcement as soon as possible. Law enforcement will make an arrest, if possible, for any complaint of domestic violence.  If the arrest is made an automatic criminal protection order will go into effect for at least 7 days. This criminal protection order will prevent the defendant from returning to the family home or having contact with the victim. In addition to the criminal protection order, you can also file a request for a civil protection order, which is discussed above here.

During the criminal process you may be assigned a victim’s advocate who can help explain the process to you. However, an attorney can help ensure that the District Attorney is adequately pursing your case and help you through the process of obtaining a civil protection order, as well as represent you in any subsequent divorce, child custody, or property dispute that might arise as a result of the domestic violence and protection orders. The attorneys at Smith, Shellenberger, and Salazar, LLC can represent you during this difficult time, and help ensure that you are safe and can live a healthy secure life after domestic violence.

I already have an allocation of parental responsibilities order. Can it be changed?

Colorado family law favors stability and permanence of determinations. Particularly, the legislature has determined that it is generally in the best interests of children and to the benefit of families and the court system, if it is not possible for parents to constantly lityigate custody issues.

 

For minor modifications, the court can change a parenting planif it is in the best interests of the child, however, the court will likely require parents to create a parenting plan that provides an avenue for them to resolve minor modification on their own. If a party wants to change the person a child resides with a majority of the time, there are more strict limits. For instance, a party can request such a modification once after permanent orders have been entered, after that no party can file a motion to modify the primary residential parent within two years of the previous modification, unless the party can show the child is in danger. C.R.S. 14-10-129(1.5).

 

Further pursuant to C.R.S. 14-10-129, if the requested modification would change the majority residential parent, a Colorado court can only grant the modification if new facts have arisen since the original decree, and:

  1. The parties agree to the modification,
  2. The child has been integrated into the moving party’s family with the consent of the other party,
  3. The majority residential parent is seeking to relocate with the children, or
  4. The present environment endangers the child’s physical health or significantly impairs the child’s emotional development, and the advantage of changing residence outweighs any harm such a change would cause.

 

Similarly, Colorado law discourages alterations to orders regarding decision-making responsibility. Thus, pursuant to C.R.S. 14-10-131, a Colorado court cannot modify decision-making responsibility absent a significant change in circumstances making the modification necessary to serve the best interests of the child. This may seem rather generic, but the court will only modify decision-making responsibility if:

  1. The parties agree to the modification,
  2. The child has been integrated into the requesting party’s family with the consent of the other party, and the integration warrants the change,
  3. There was a modification of parenting time which justifies the change,
  4. One party has consistently allowed the other to make unilateral decisions for the child, or
  5. The child is endangered by the current allocation of decision-making responsibility, and the advantage of changing residence outweighs any harm such a change would cause.

I was never formally married in a ceremony. Am I married?

You may be a party to a common law marriage.

A dispute over the existence of a common law marriage usually only arises at the end of a relationship. At that time, it is going to be up to the court to determine whether such a marriage existed. No Colorado law enumerates the requirements of a common law marriage, C.R.S. 14-2-104(3), enumerates the requirements for a Colorado marriage and states: “Nothing in this section shall be deemed to repeal or render invalid any otherwise valid common law marriage between one man and one woman.”

 

Thus, the courts will look to case law to determine the requirements for a common law marriage. Case law states that “A common law marriage is established by the mutual consent or agreement of the parties to be husband and wife, followed by a mutual and open assumption of a marital relationship.”  People v. Lucero, 747 P.2d 660 (Colo. 1987). This means the couple must:

  1. Cohabitate,
  2. Mutually agree to be married, and
  3. Openly hold themselves out to the public as married.

 

Each of these criteria can be demonstrated a number of different ways. A couple does not need to live together for a particular period of time, but the duration of the common law marriage can only be as long as the duration of the parties’ cohabitation. A couple does not need to put their agreement to be married in writing.  Further, openly holding each other out as married can vary from telling family friends you are spouses to filing joint taxes. As you can see, this means that all aspects of a common law marriage can be grounds for extensive litigation.

The diverse forms of evidence for these criteria and the many ways that people can attempt to prove an agreement and holding themselves out as married, often require extensive hearings if the parties do not agree on the existence or duration of a common law marriage. At such a hearing judges often require rather extensive evidence and uniformity of that evidence. Thus, if you believe you are part of a contested common law marriage, Smith, Shellenberger, and Salazar, LLC can be your advocate in navigating the difficult evidentiary and proof issues involved in a contested common law marriage.

What impact will a domestic violence allegation have on my relationship with my kids?

As stated above, if your spouse has received a civil protection order against you, this order can make such tasks like discussing parenting issues and having pick-ups and drop offs very difficult. Special provisions will often have to be negotiated so the parties can continue to co-parent. Additionally, when the judge is considering the best interests of the child in determining parenting time, the judge must give consideration to the child’s physical, emotional and mental needs. Thus, if domestic violence is proven the court must take that into account and make all attempts to ensure the child’s safety and emotional well being are protected. This could result the domestic violence perpetrator’s interaction with children being limited and monitored.

Therefore, if you have been accused of or found to have committed domestic violence, it is important to contact an attorney immediately so that you can ensure the issue is addressed as fairly as possible before a family court.

Can I get divorced without an attorney?

Colorado law certainly allows and even provides some assistance for people who represent themselves in a divorce. However, despite the forms available on the court website: https://www.courts.state.co.us/Forms/SubCategory.cfm?Category=Divorce, and the minimal assistance some county courts provide, it does require a significant amount of time and effort to educate yourself, fill out forms properly, and keep track of the required court deadlines and appearances. Thus, pursuing your own divorce is something you should consider very carefully. Here are a few things to consider:

 

  • Is this a contested divorce?
  • Do you have a small or simple martial estate? In other words are your debts and assets easily defined and can they be easily divided?
  • Do you have relatively equal incomes or are not seeking maintenance? The ideal situation would be relatively equal incomes, so maintenance is not an issue, or, if there is a disparity in incomes, there are no issues of underemployment, hidden income, or inability to work, as these are often highly contentious and involve extensive evidentiary proof.
  • Do you have children? You can get a divorce on your own even if you have children, however, experience in this field has taught us that issues involving children are usually too complex for parties to negotiate purely on their own and this often devolves into fighting that ends up costing the parties, more time, money and grief in the end.
  • Do you live in Colorado? If you live outside the state there are additional steps you’ll need to take and it can be very helpful to have a local attorney handling your case for you.

 

If you have any questions about these considerations, or would like to discuss whether you should pursue a case on your own without an attorney please feel free to contact our office and schedule a consultation with one of Smith, Shellenberger, and Salazar’s experienced attorneys.

DENVER COUNTY DISTRICT COURT TO FORM THIRD SPECIALIZED ICWA COURT IN THE NATION

We are pleased to announce that Lisa R. Shellenberger of Smith Shellenberger and Salazar, LLC has been selected to be part of the committee that will create the third specialized ICWA (Indian Child Welfare Act) Court in the United States. The new ICWA Court will be established in Denver County Juvenile Court starting on January of 2017. The only other two specialized ICWA courts in the United States are Edelman Children’s Court in Los Angeles, California, and the Duluth Courthouse in Duluth, Minnesota.

Spearheading this ambitious project is the venerable Judge Donna Schmalberger in conjunction with a committee of ICWA scholars such as Nikki Borchardt Campbell, Executive Director of the National American Indian Court Judges Association, the Casey Family Programs Foundation, and attorney Lisa R. Shellenberger of Smith, Shellenberger and Salazar, LLC., a firm specializing in Native American law and tribal issues. The committee is in contact with and is working in conjunction with their counterparts in Los Angeles and Duluth to ensure the success of this project.

The new ICWA Court is being established to clear the confusion that some attorneys, judges, and judicial officers may have regarding ICWA cases, which are a specialize subset of Dependency & Neglect cases involving Indian Tribes and Indian children. The purpose of the ICWA Court is to streamline the ICWA process by establish clear policies and procedures governing ICWA cases.

We are honored that partner Lisa R. Shellenberger has been personally chosen by Judge Schmalberger as a member of the committee establishing Colorado’s inaugural ICWA Court. Partner Lisa R. Shellenberger has litigated ICWA cases on behalf of tribes and Native Americans for many years and is regarded by her peers as an expert in ICWA related issues. She is excited about sharing her experience and knowledge with the committee and is committed to ensuring that the new Denver ICWA Court is a success.

Initial Training for the ICWA Court for Judicial Staff and Officers is anticipated to begin on Thursday, October 27, 2016 with a half-day training aimed at regular participants in ICWA court such as attorneys, caseworkers, GALs (Guardian Ad Litems), and CASAs (Court Appointed Special Advocates). This will be followed by a longer full-day training on Friday, October 28, 2016.

What if my spouse an I agree on a division of parental responsibilities?

If you and your spouse are able to agree on a division of parental responsibilities that is fantastic! You have just saved your selves and your children a great deal of conflict, and created an environment that will hopefully lead to an amicable relationship with your ex-spouse that allows you both to co-parent your children. However, any agreement will still be reviewed by the court, and the court will still have to make a determination that that agreement is in the best interests of the children.

Further, remember that these agreements are by law somewhat difficult to modify, so you want an agreement that hopefully contemplates potential future conflict and provides for resolution of that conflict. Therefore, even if you and your spouse have reached an agreement, it is a good idea to consult an attorney before submitting anything to the court. If you have questions about your parenting plan, please contact our office to set up a consultation with an attorney.