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.

What is a marriage?

In Colorado you can be married two ways:

1) Through a ceremony that follows the procedure directed in the Colorado statutes or;

2) Enter into a common law marriage.

 

Marriage by ceremony is what people traditionally think of as a marriage. However, remember that a marriage does not need to be performed in a church, courthouse, or in any particular type of ceremony. Colorado has adopted the Uniform Marriage Act and under Colorado law these are the requirements for a ceremonial marriage:

  1. Marriage License.  You must get a marriage license from your local county clerk and recorder, and provide some basic demographic information.  If you are previously divorced, you must furnish proof of your divorce.  C.R.S. §14-2-105.  Though you and your husband/wife must sign the license, only one of you needs to appear in person to obtain the license.  C.R.S. §14-2-106.
  2. Solemnize the Marriage.  The license must then be solemnized within 30 days, pursuant to C.R.S. §14-2-107.  Though parties typically have a judge or a minister perform the ceremony, Colorado allows the marriage to be solemnized by a judge, magistrate, minister, or even one of the parties to the marriage.  C.R.S. §14-2-109.
  3. Register the Marriage.  The person who solemnized the marriage must complete the marriage certificate form, which then has to be forwarded to the county clerk & recorder within 60 days of the ceremony.

Also remember that in Colorado you must be at least 18 years-old to get married or have permission from a parent or guardian. C.R.S. 14-2-106.  Children under 16 years-old may marry with both parental consent, and permission

How does the Court determine who gets what?

The court will attempt to reach a “fair and equitable” distribution of property and a custody determination that is in the best interests of the children. Since family law is essentially about what is fair to all parties; even if one party is a wrongdoer in some way, the family courts are not a forum for punishment. The system is intended to allow parties to separate their finances and property and arrange for them to continue raising their children with the least conflict possible. As a result, people rarely get everything they want in a divorce or legal separation.

Thus, it is often in your best interest to reach an agreement with your spouse on any issues you can. Not only does this save you time and money, but it also allows you to make the determinations rather than a judge, allowing you to know with certainty what you will receive. Colorado law encourages parties to reach agreement on all possible issues. Thus, the court will mandate some form of mediation or settlement discussion. The county in which you are seeking your divorce and your judge will dictate when and how such mediation takes place. An attorney can be very helpful in this process. Not only can an attorney advocate for you and your interests during the mediation process, making the mediator aware of applicable law, but an attorney can also discuss with you reasonable likely outcomes of a trial.

If you have questions about how the court might resolve a specific issue in your case, please contact our office to schedule a consultation with one of the experienced attorneys at Smith, Shellenberger and Salazar, LLC.

What experts are involved in custody cases in Colorado?

Often in high conflict parental responsibilities cases the parties will choose to engage an expert or will ask the court to appoint one to provide a neutral insight into the behaviors of the parties and their interpersonal relationships with their children, in order to make recommendations to the court about what is in the child’s best interest. This is especially true in cases with allegations of abuse or neglect, substance abuse by a parent, or domestic violence.

The Court can unilaterally appoint an expert. However, the usual course of action is for the parties to agree on an expert, or one party will make the request to the court. There are essentially two types of experts Colorado courts appoint in custody cases, they are: Child and Family Investigators (CFIs) and Parental Responsibilities Evaluators (PREs). Both types of experts will meet with the parties, children, and will generally visit the homes of the parties for an evaluation. A Parental Responsibilities Evaluator completes mental health testing on the parties and conducts a complete evaluation of the mental health and relationships of all parties. Thus, there is no monetary cap on the amount a PRE investigation might cost. CFI’s are generally capped at $2000 and typically only investigate specific allegations raised in the case.

 

If you are a party to a contested custody case, which raises issues that you believe might require the use of an expert, please contact our office for a consultation to discuss your options and the legal and financial implications.

How can I protect myself from domestic violence during my divorce?

You can request a civil protection order. Colorado law provides for issuance of temporary protection orders upon an allegation of physical or emotional abuse. The court must then hold a hearing on the protection order within seven (7) days. At that hearing the court will determine whether the protection order will become permanent based on the testimony and evidence provided at the hearing. Protection orders can have varying terms, but often they require the restrained party to keep a certain physical distance from the other party and avoid certain locations the protected party is likely to be, like their home or work.

Note, if you have children and there are no allegations of abuse toward the children the court should not issue a protection order against the restrained party as it relates to the children. However, a protection order can still impact a number of issues related to co-parenting so it is important to consult an attorney if this is the case.

Civil protection orders can have important implications for your health and safety as well as the relationship with your spouse and children, thus it is always a good idea to consult an attorney before seeking a civil protection order during divorce. As with all issues in divorce people sometimes use allegations of domestic violence as a tool to hurt or cast their other spouse in a poor light. However, remember that if the other party can show that the allegations are fabricated or exaggerated, that will only cast the accusing party in a bad light with the court. This is another reason to contact the attorneys at Smith, Shellenberger and Salazar, LLC before taking action regarding domestic violence or trying to defend against such actions.

My spouse filed for dissolution of marriage. What do I do now?

As the Petition has already been filed, you must be served with it, if you haven’t already. Unless you have consulted with an attorney on the matter it is not a good idea to attempt to evade service of the petition, as judges often do not look favorably on this sort of behavior and your spouse will likely find a way to proceed anyway.

You should accept service of the Petition. Next, you will have to submit the mandatory financial disclosures to the court. These disclosure forms can be found on the Colorado Courts website. You must fill out these financial disclosures regardless of the disputed issues in your case, because the Court must understand the full extent of the parties’ financial circumstances in order to make a fair ruling on all aspects of the divorce.

Once you have been served a petition for dissolution of marriage or legal separation, an injunction goes into effect. C.R.S. 14-10-107(4)(b)(I) dictates that the injunction prevents both spouses from:

  1. Removing children from Colorado without permission from the other spouse or the family law court. Usually permission for a vacation or summer camps etc. will be granted, but you must get permission.
  2. Disturbing or harassing the other spouse.
  3. Hiding, destroying, transferring or disposing of marital property, except in the ordinary course of business.
  4. Canceling or modifying any insurance (health, auto, life, etc.) without your spouse’s written consent or the Colorado divorce court’s permission, or allowing the policy to lapse for non-payment.

 

There remains debate as to whether activities other than those listed here are also prohibited. To err on the side of caution it is best practice to maintain all financial matters as they currently stand, from the time the petition was filed until final orders are issued.

Within 40 days of the filing of the Petition, the Court will set an initial status conference for the parties. Depending on the county the initial status conference may be before a family court facilitator or a magistrate judge. Regardless of who is presiding this is a preliminary conference to set deadlines for disclosures, schedule upcoming hearings, and discuss the anticipated issues in the case. The initial status conference is quick, about 10 minutes.

After that the proceedings depend on the circumstances of your case. If you have agreed on all matters in your case you can file for dissolution without ever having to appear for a hearing. If there are disputed issues those will be resolved at a permanent orders hearing, which is a full hearing before the judge including witnesses, evidence, and opening and closing statements. If your case proceeds to a permanent orders hearing, this can be lengthy and expensive, however, the attorneys at Smith, Shellenberger, and Salazar, LLC can ensure that you receive the best representation possible at your permanent orders hearing.

How do Colorado Courts determine who gets custody of children?

The term “custody” actually refers to two different forms of custody, physical custody and legal custody. Physical custody is what most people refer to when they use the term custody. Physical custody refers to the time the child spends in the physical presence and care of a parent. Legal custody instead refers to a parent’s rights to be involved in decision making and child rearing. These two concepts are included in Colorado law, however rather than the term “custody” Colorado law uses the term “parental responsibilities”. Parental responsibilities are divided into two categories: parenting time and decision making. In a divorce the court will allocate these parental responsibilities between the two parties.

In Colorado, there is a presumption in favor to joint decision-making responsibility. In other words, both parents have a right to be involved in major decisions involving the children unless the court determines it is not in the best interest of the child to be involved in such decisions. Major decisions include decisions affecting health, education, religion, and general welfare. However, day-to-day decisions are left up to the parent currently exercising parenting-time responsibilities.  In emergencies either parent can consent to necessary surgery or medical treatment.

Colorado courts allocate parental responsibilities based on what is in the “best interests of the child.” When deciding what is in the child’s best interest courts can consider almost anything except: 1) Conduct which does not affect a party’s relationship with the child (since Colorado has no-fault divorce, courts don’t want custody fights to be used to raise irrelevant allegations, like adultery); 2) gender of the parties; 3) a request for genetic testing; 4) a parent leaving the home due to the domestic violence by the spouse. However, C.R.S. 14-10-124(1.5)(a) dictates that the court will consider the following:

  1. The wishes of the child’s parents;
  2. The wishes of the child, if sufficiently mature (typically starts about 12 or so);
  3. The relationship between the child, the parents, siblings, and any other person who may significantly affect the child’s best interests;
  4. The child’s adjustment to his or her home, school, and community;
  5. The mental and physical health of all individuals involved, except that a disability alone shall not be a basis to deny or restrict parenting time;
  6. The ability of the parties to encourage the sharing of love, affection, and contact between the child and the other party;
  7. Whether the past pattern of involvement of the parties with the child reflects a system of values, time commitment, and mutual support;
  8. The physical proximity of the parties to each other;
  9. Whether a party has been a perpetrator of child abuse or neglect;
  10. Whether a party has been a perpetrator of spouse abuse;
  11. The ability of each party to place the needs of the child ahead of his or her own needs.

 

Further, when making determinations regarding parenting time it will also consider:

  1. Credible evidence of the ability of the parties to cooperate and to make decisions jointly;
  2. Whether the past pattern of involvement of the parties with the child reflects a system of values, time commitment, and mutual support that would indicate an ability as mutual decision makers to provide a positive and nourishing relationship with the child;
  3. Whether an allocation of mutual decision-making responsibility will promote more frequent or continuing contact between the child and each of the parties;
  4. A perpetrator of child abuse or neglect may not have decision-making over the others objection;
  5. A perpetrator of spousal abuse may not have decision-making over the others objection, unless the court finds that the parties are able to make shared decisions about their children without physical confrontation and in a place and manner that is not a danger to the abused party or the child.

 

As you can see, the Courts consider many factors when determining what is in the best interests of children. This can lead to complicated hearing, and lengthy evaluation processes that often involves experts. For more about experts see post below. As a result, if you are involved in, or expect to be involved in, a divorce where parenting time will be a contested issue, it is important to consult an attorney. This is often the most complicated and conflict ridden part of a divorce. Thus, please contact the attorneys at Smith, Shellenberger and Salazar, LLC to discuss the specifics of your case.