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Robert D.
Gustafson, Attorney At Law
COLORADO SPRINGS TRIAL LAWYER
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6538 Charter
Drive
Colorado Springs, CO 80918-1335
Phone (719) 260-1002
Toll Free (800) 410-1002
E-MAIL
ATTORNEY
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Attorney
Business Hours
Attorney
Availability Status
FREE
INITIAL CONSULTATION
Fax (719) 260-1003
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COLORADO
SPRINGS DOMESTIC ABUSE
RESTRAINING ORDERS
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WELCOME
I appreciate your interest
perhaps I will become your attorney |
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Domestic Abuse Restraining Orders - Colorado Springs - domestic abuse & domestic violence, temporary restraining orders - TRO, permanent restraining orders - PRO, emergency protective orders - EPO, injunctions, reciprocal restraining orders or mutual restraining orders, restraining order dismissal, violation of a restraining order, enforcement, defense, sanctions, penalties, TESSA safe house, counseling, therapy, CBI central registry, firearms purchase, firearms possession, firearms ownership, ammunition possession, prohibition, sealing civil court records, sealing criminal justice records, attorneys fees award, attorneys fees denial, court costs, litigation
costs.
DOMESTIC ABUSE RESTRAINING ORDERS
GENERAL
INFORMATION |
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In the
Colorado
Statutes, the phrase domestic abuse refers to civil
restraining order proceedings. The phrase domestic violence refers to
criminal acts which fall within the defined domestic violence sanction
category. This
website deals with civil remedies |
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Criminal
Charges?
refer to |
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The phrase injunction and restraining order may be used interchangeably. A restraining order is a
court order which prohibits certain behavior. In domestic restraining
orders, the person restrained is ordered to stay away from the protected person,
usually by 100 feet, and to stay away from the protected person's residence and
place of employment, and perhaps children. If violated,
sanctions or criminal charges may result. Put another way, restraining orders are
powerful and should be sought only
when warranted by a factual basis of violence or immediate danger of violence
which places the protected person in reasonable fear |
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CRS
13-14-101 Statutory Definitions.
Civil Law - Injunctions
1 ... irrelevant
2 "Domestic abuse" means
any act or threatened act of violence that is committed by any person against
another person to whom the actor is currently or was formerly related, or with
whom the actor is living or has lived in the same domicile, or with whom the
actor is involved or has been involved in an intimate relationship.
"Domestic abuse" may also include any act or threatened act of
violence against the minor children of either of the parties.
3 "Stalking" means the
crime of harassment by stalking
as described in
CRS 18-9-111 |
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Proceedings may be initiated for a restraining order on the basis of domestic
abuse. Counsel may become involved in 3 circumstances, and the attorney's
role will vary.
1. As an ancillary proceeding
to defense in a criminal case regarding domestic violence. In such event,
counsel will represent only the defendant.
2. As an ancillary proceeding
to dissolution of marriage or paternity or other family law pending case.
In such event, counsel may represent either the plaintiff or defendant.
3. Representation solely in the
domestic abuse restraining order. In such event, counsel may represent
either the plaintiff or defendant. |
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Restraining orders can be
obtained if there is a factual basis of abuse, violence or immediate danger of violence
which places a person in reasonable fear. A restraining order is a court order that
tells the restrained person to stay away from the protected person or perhaps children.
Restraining orders
are powerful and can have quite serious additional consequences to the
restrained person. I will seek only when a factual basis warrants. |
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1. A restraining order is a piece
of paper. As powerful as the sanctions may be, a restraining order will not
stop a bullet, knife or beating.
2 If law enforcement is contacted,
a restraining order will bring the officers responding quickly and will
result in arrest if the officers find the restrained person in violation of
the order at the time of their arrival. If the restrained person is
not there at the time of arrival, he / she may shortly thereafter be
arrested.
3. If the alleged victim is truly
fearful for his / her immediate physical well-being, safe housing should be
sought.
That may be through the
T*E*S*S*A
safe house, relatives, friends, a temporary motel, or perhaps a permanent
move out of state.
If a temporary motel is utilized,
stay away from the commonly known motels or strips such as along I-25 &
Palmer Park or North or South Nevada Ave. - the alleged abuser may drive by
looking for your vehicle. |
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Spying on the
spouse or significant other. Factual basis for
felony
stalking or
domestic
abuse restraining order is not limited to physical acts. Electronic bugging devices or
tracking devices (GPS) will support a felony criminal prosecution or restraining
order. |
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Refer to
People v. Sullivan, 53 P.3d 1181 (Colo.App.
2002)
felony stalking conviction upheld for electronic GPS device on
wife's car with downloadable chip |
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In the context of
felony stalking,
(whether or not an intimate relationship, breakup,
divorce,
separation,
paternity allegation or
domestic abuse restraining order litigation), the
Sullivan rationale may likely extend to
surreptitious installation and monitoring of a computer program which
repeatedly reports computer usage or internet activity to another.
(computer spyware tracking programs installed without the user's knowledge
or consent). Publishing attorney has not had occasion to defend a
computer spyware felony stalking case, nor is he aware of any
specific case in which such criminal charges have been initiated.
Although
Sullivan may be a harbinger, current
statutory language does not specifically identify surreptitious spyware
installation or monitoring as prohibited conduct, and may not be sufficient
to support a felony stalking conviction. Additional legal research would be
required for a more definitive opinion regarding defense of this issue. |
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Web beacons, aka web bugs, have become standard practice in many
commercial websites, including reputable companies. Web bugs are
installed surreptitiously without the user's knowledge or consent and
without benefit of court order - court scrutiny. Web bugs may
track computer usage or internet activity. Commercial software is
available to block or find and delete web bugs which are considered by
many in the computer industry to be spyware.
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An attorney naturally queries the difference between tracking spyware
surreptitiously installed by a commercial enterprise and tracking
spyware surreptitiously installed to track computer or internet activity
of someone with whom the installing person (alleged stalker) has had a
continuing relationship. Put another way, is the enabling language
of
CRS
18-9-111(4)(a)
sufficient to withstand a constitutional equal protection challenge? |
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Generally speaking, the
maxim applies which William Shakespeare set forth in Merchant of Venice:
"truth will come to light... at the length truth
will out" which has come to be known as:
"over time, the truth will out"
Be patient, not a criminal law case of
first impression or test case like
Sullivan.
If there is a need to quickly determine facts, hire a reputable
private
investigator. |
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Destruction of joint
or marital property may result in
criminal mischief
charges. |
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Refer to
People v. Sullivan, 53 P.3d
1181 (Colo.App. 2002)
arson conviction upheld for burning wife’s
marital property clothing |
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Prior to and during
litigation proceedings, be respectful of joint property or marital
property.
This would be particularly applicable regarding
that claimed by your spouse or
significant other to be his or her property. |
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Domestic abuse retraining order. If facts support a
criminal conviction, facts will support a domestic abuse restraining
order. |
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Abuse Occurrence. Domestic abuse or domestic violence can occur in
any gender, race, social or economic background. If this is a factor in
your life (perpetrator or victim), stop the abuse now. Assistance is
available. |
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Abuse Reporting. By law, domestic abuse or child abuse reported
to medical, therapy, social work or school professionals must be reported by
them to the
El Paso County Department of Human Services
(DHS - fka DSS)) or law enforcement. Your attorney may not disclose
abuse without your consent based upon the attorney-client privilege. |
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Child abuse or domestic abuse will not be tolerated by the courts. By law prior criminal charges, abuse injunctive
proceedings and child abuse dependency and neglect proceedings must be
disclosed in writing to the judge at the time of filing the divorce. The DHS maintains a statewide
identification central registry of all reported child abuse. The Colorado
Bureau of Investigation (CBI) maintains a statewide central registry
identifying domestic abusers (civil injunctions and criminal charges).
These records have major impact upon a
person's future. Injury or criminal charges may result from actions.
Use reason, logic and self-control when
separating - not emotional reaction. |
DOMESTIC ABUSE RESTRAINING ORDERS
CIVIL
PROCEEDINGS
e-Filing
- court mandatory requirements |
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CRS
13-14-102. Civil restraining
orders.
1. Any municipal court of
record, if authorized by the municipal governing body, any county court, and
any district court shall have original concurrent jurisdiction to issue a
temporary or permanent civil restraining order against an adult or against a
juvenile who is ten years of age or older for any of the following purposes:
a. To prevent assaults and threatened bodily harm;
b. To prevent domestic abuse;
c. To prevent emotional abuse of the elderly;
d. To prevent
stalking.
LEGAL
FORMS
a.
T*E*S*S*A
fka The Center for
Prevention of Domestic Violence. Victims may call the
T*E*S*S*A
administration phone.
b. Refer to link for locally available
Hardcopy
Legal Forms
c. Refer to the link for on-line
Colorado
Supreme Court Litigation and Legal Forms.
d. The lawsuit can be handled by an attorney.
FILING THE
RESTRAINING ORDER LAWSUIT
e-Filing
- county court unavailability - district court availability and court mandatory requirements
a. This is an
independent lawsuit - usually filed in county court.
b. Complaint for a permanent injunction
(restraining order) may be filed in a separate county court lawsuit as
indicated above in CRS 13-14-102. If a dissolution of marriage, legal
separation or paternity action has been filed, the restraining order lawsuit may
be joined with the family law case, or may also be kept independent in county
court.
c. Venue is the county where the
lawsuit is filed and heard. Venue for filing a motion or complaint pursuant to this section is proper in any county where the acts that are the subject of the motion or complaint occur, in any county where one of the parties resides, or in any county where one of the parties is employed. This requirement for venue does not prohibit the change of venue to any other county appropriate under applicable law.
d.
1. No filing fees may be assessed against petitioners seeking relief under this section; except that the court may assess a filing fee against a petitioner, if the court determines the petitioner is not seeking the restraining order as a victim of domestic abuse as defined by
CRS 13-14-101 (2); domestic violence as defined by CRS 18-6-800.3 (1),
stalking
as defined by
CRS 18-9-111, or sexual assault as defined by CRS 18-3-402, Petitioners shall be provided the necessary number of certified copies at no cost.
2. No fees for service of process may be assessed by a state agency or public agency against petitioners seeking relief under this section as a victim of conduct consistent with the following: Domestic abuse as defined by section 13-14-101 (2); domestic violence as defined by
CRS 18-6-800.3 (1),
stalking
as defined by CRS 18-9-111, or sexual assault as defined by
CRS 18-3-402.
3. At the permanent restraining order hearing, the court may require the respondent to pay the filing fee and
service of process fees, as established by the state agency, political subdivision, or public agency pursuant to a fee schedule, and to reimburse the petitioner for costs incurred in bringing the action.
TEMPORARY
RESTRAINING ORDER
a. At the time of filing, plaintiff files a motion for a temporary civil restraining order.
The motion is presented to a magistrate and decided ex parte, which means
without notice to or an opportunity for the defendant to be heard.
The magistrate makes the determination of whether to issue a temporary
restraining order upon the basis of facts alleged in the complaint.
b. A temporary civil restraining order may be issued if the issuing judge or magistrate finds that an imminent danger exists to the person or persons seeking protection under the civil restraining order. In determining whether an imminent danger exists to the life or health of one or more persons, the court shall consider when the most recent incident of abuse or threat of harm occurred as well as all other relevant evidence concerning the safety and protection of the persons seeking the restraining order. However, the court shall not deny a petitioner the relief requested solely because of a lapse of time between an act of abuse or threat of harm and filing of the petition for a restraining order.
CITATION
TO APPEAR
a. With the temporary restraining order, the court issues a citation directed to the defendant commanding the defendant to appear before the court at a specific time and date and to show cause, if any, why said temporary civil restraining order should not be made
permanent. If the defendant fails to appear before the court for the show cause hearing at the time and on the date identified in the citation issued by the court and the court finds that the defendant was properly served with the temporary restraining order and such citation, it shall not be necessary to re-serve the defendant to make the restraining order permanent.
b. A copy of the complaint together with a copy of the temporary civil restraining order and a copy of the citation shall be served upon the defendant and in accordance with the rules for service of process as
County Court C.R.Civ.P. 304 or District Court C.R.Civ.P. 4. The citation shall inform the defendant that, if the defendant fails to appear in court in accordance with the terms of the citation, a bench warrant may be issued for the arrest of the defendant and the temporary restraining order previously entered by the court shall be made permanent without further notice or service upon the defendant.
PERSONAL
EFFECTS PENDING FINAL ORDERS
Any person against whom a temporary restraining order is issued pursuant to this section, which temporary restraining order excludes such person from a shared residence, shall be permitted to return to such shared residence one time to obtain sufficient undisputed personal effects as are necessary for such person to maintain a normal standard of living during any period prior to a hearing concerning such order.
Such person against whom a temporary restraining order is issued shall be permitted to return to such shared residence only if such person is accompanied at all times while the person is at or in such shared residence by a peace officer.
A very short amount of time is permitted - the restrained person should make
certain adequate transportation and manpower is available to move the personal
effects quickly.
FINAL
ORDERS HEARING
a. The return date of the citation shall be set not more than
fourteen days after the issuance of the temporary civil restraining order and citation. If the petitioner is unable to serve the defendant in that period, the court shall extend the temporary restraining order previously issued, continue the show of cause hearing, and issue an alias citation stating the date and time to which the hearing is continued. The petitioner may thereafter request additional continuances as needed if the petitioner has still been unable to serve the
defendant.
b. If the judge or magistrate, after examining the record and the evidence, for good cause shown
may continue the temporary restraining order and the show cause hearing to a date certain not to exceed one hundred twenty days after the date of the hearing if he or she determines such continuance would be in the best interests of the parties and
if both parties are present at the hearing and agree to the continuance.
c. In addition, each party may request one continuance for a period not to exceed fourteen days which the judge or magistrate, after examining the record and the evidence,
may grant upon a finding of good cause.
d. If the defendant fails to appear at the return date and the petition is for a restraining order to prevent domestic abuse, the court shall order the terms of the temporary restraining order to be made permanent without further notice or service upon the defendant.
e. At the time a civil restraining order is requested, the court shall inquire about, and the requesting party and such party's attorney shall have an independent duty to disclose, any knowledge such party and such party's attorney may have concerning the existence of any prior restraining orders of any court addressing in whole or in part the subject matter of the requested civil restraining order.
f. At final orders hearing, the judge or magistrate (without a jury) will accept
testimony, introduction of exhibits and entertain closing arguments by each
party. This is a full evidentiary hearing. If the Court finds that the defendant has committed acts constituting grounds for issuance of a civil restraining order and that
unless restrained will continue to commit such acts, the judge or magistrate shall order the temporary civil restraining order to be made permanent or order a permanent civil restraining order with different provisions from the temporary civil restraining order. The judge or magistrate shall inform said defendant that a violation of the civil restraining order shall constitute a criminal offense pursuant to section
CRS 18-6-803.5, or shall constitute contempt of court and subject the defendant to such punishment as may be provided by law.
PERMANENT
ORDERS
The court may enter restraining orders as court deems necessary for the protection of
person which may include, but are not limited to:
a. Restraining a party from threatening, molesting, or injuring any other party or the minor child of either of the parties;
b. Restraining a party from contacting any other party or the minor child of either of the parties;
c. Excluding a party from the family home upon a showing that physical or emotional harm would otherwise
result;
d. Excluding a party from the home of another party upon a showing that physical or emotional harm would otherwise result;
e. 1. Awarding temporary care and control of any minor children of either party involved for a period of not more than one hundred twenty
days
2. If temporary care and control is awarded, the order may include parenting time rights for the other party involved and any conditions of such parenting time, including the supervision of such parenting time by a third party who agrees on the record to the terms of the supervised parenting time and any costs associated with supervised parenting time, if necessary. If the restrained party is unable to pay the ordered costs, the court shall not place such responsibility with publicly funded agencies. If the court finds that the safety of any child or the protected party cannot be ensured with any form of parenting time reasonably available, the court may deny parenting time.
3. The standard for the award of temporary care and control shall be in accordance with
CRS 14-10-124 (best interests of the child).
4. Any order for temporary care and control issued pursuant to subsection (15) of this section shall be governed by the "Uniform Child-custody Jurisdiction and Enforcement Act",
CRS Title 14, article 13.
5. Any order regarding exclusion from the family home or temporary care of
control of children shall terminate whenever a subsequent order regarding the same
subject matter is granted pursuant to the "Uniform Dissolution of Marriage
Act", CRS Title 14, Article 10, or the "Uniform Child-custody
Jurisdiction and Enforcement Act", CRS Title 14, Article 13, or the
"Colorado Children's Code", CRS Title 19, Article 4 (paternity or
legal parentage).
f. Such other relief as the court deems appropriate.
MUTUAL
RESTRAINING ORDERS
A court shall not grant a mutual restraining order to prevent domestic abuse for the protection of opposing parties unless each party has met his or her
statutory burden of proof and the court makes separate and sufficient findings of fact to support the issuance of the mutual restraining order to prevent domestic abuse for the protection of opposing parties. No party may waive these requirements.
SERVICE OF
RESTRAINING ORDERS
Each party is provided a copy of any order issued pursuant to this section, and
a copy shall be delivered to any law enforcement agency having jurisdiction to enforce said order.
MODIFICATION
OR DISMISSAL OF RESTRAINING ORDER
a. Petitioner (protected person) may move for modification of the terms or
duration of the restraining order, or may move to dismiss the restraining order
entirely.
b. 1. Respondent (restrained person) may also move
for modification of the terms or duration of the restraining order, or may move
to dismiss the restraining order entirely. However, once such a motion has
been filed, the restrained person may not again file a motion until four (4)
years has elapsed. CAVEAT - See ¶2.
2. If Respondent (restrained person) has been convicted of any felony or
any crime defined as domestic violence pursuant to CRS 18-6-800.3, then the restraining order shall remain permanent and shall not be dismissed by the court.
3. Any motion to modify or vacate a permanent restraining order must be
accompanied by the results from the Colorado bureau of investigation of a fingerprint-based criminal history record check.
The fingerprint-based criminal history record check shall include arrests, conviction records, any criminal dispositions reflected in the Colorado bureau of investigation and federal bureau of investigation records concerning any felony record or any misdemeanor record, the underlying factual basis of which has been found by a court on the record to include an act of domestic violence, fingerprint processing by the federal bureau of investigation and the Colorado bureau of investigation, and a query of the restraining order registry. The moving party shall be responsible for providing certified copies of any criminal dispositions that are not reflected in the Colorado bureau of investigation or federal bureau of investigation records and any other dispositions that are unknown. The moving party shall be responsible for supplying fingerprints to the Colorado bureau of investigation and for obtaining the fingerprint-based criminal history record check. The moving party shall also be responsible for the cost of the fingerprint-based criminal history record check.
c. The issuing court shall retain jurisdiction to enforce, modify, or dismiss a temporary or permanent restraining order.
d. If a motion to modify or dismiss is filed, a copy of the motion and notice of the hearing on the
motion must be personally filed upon the opposing party.
e. The moving party bears the burden of proof to show, by a preponderance of the evidence, that the modification is appropriate or that a dismissal is appropriate because the restraining order is no longer necessary. If the protected party has requested that his or her address be kept confidential, the court shall not disclose such information to the restrained party or any other person, except as otherwise authorized by law.
f. Relevant factors in court's determination of motion:
1. Whether the restrained party has complied with the terms of the restraining order;
2. Whether the restrained party has met the conditions associated with the restraining order, if any;
3. Whether the restrained party has been ordered to participate in and complete a domestic violence treatment program provided by an entity approved pursuant to
CRS 16-11.8-103(4)(b)(III)(C), and whether the restrained party has completed the program;
4. Whether the restrained party has voluntarily participated in any domestic violence treatment program or other counseling addressing domestic violence or anger management issues;
5. The time that has lapsed since the restraining order was issued;
6. When the last incident of abuse or threat of harm occurred or other relevant information concerning the safety and protection of the protected person;
7. Whether, since the issuance of the restraining order, the restrained person has been convicted of or pled guilty to a crime, the underlying factual basis of which has been found by a court on the record to include an act of domestic violence, as that term is defined in
CRS 18-6-800.3 (1), other than the original offense, if any, that formed the basis for the issuance of the restraining order;
8. Whether any other restraining orders or protective orders or protection orders have been subsequently issued against the restrained person pursuant to this section or any other law of this state or any other state; and
9. The circumstances of the parties, including the relative proximity of the parties' residences and work places and whether the parties have minor children together.
g. Modification or dismissal provisions of the statute apply only to
restraining orders entered on or after July 1, 1999.
DOMESTIC ABUSE RESTRAINING ORDERS
DEFENSE
RESTRAINING ORDER PROCEEDINGS |
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If your spouse or
significant other has filed for a county court restraining order, a temporary
injunction has likely entered. By law, the return date must be set no
later than 14 days after the civil temporary restraining order and
citation. In El Paso County, final orders hearing on permanent injunction is
scheduled approximately 10 days after the initial filing. If the parties
are both present and each agree to continuance, upon good cause shown the court
may continue the temporary restraining order and final orders hearing for a
period not to exceed 120 days. Absent the other party's consent, upon good
cause shown each party (including defendant) may request one continuance up to
14 days.
If plaintiff or counsel will not agree to continuance, the defendant must
litigate on a very short notice fuse. Insufficient time
exists for adequate hearing preparation - counsel must absolutely
scramble. To prepare for final orders hearing, need for priority
assignment to a PRO case would be common. That means counsel must have the
ability to devote attention to the PRO case to the exclusion of other clients'
cases. Depending upon an attorney's caseload and court calendar, that may
or may not be possible. If the attorney's trial calendar permits, you will
make your attorney, private investigator and process server very busy very
quickly. I count on lack of consent to continuance and prepare for hearing
as scheduled or decline the case.
Regarding an overview of trial preparation, see
attorney's
role and assistance.
No Criminal Charges Pending. If no criminal charges are pending, the defendant may testify at the PRO
hearing, however that carries the danger that statements may be used against
defendant if criminal charges are later initiated. Whether to testify or
not is defendant's decision. Absent current criminal charges, I would use
testimony of defense witnesses.
Criminal Charges Pending. If the defendant has criminal
charges pending,
1. I advise my client not to testify at the civil injunction
hearing. A transcript of testimony would be available for use against the
defendant in the criminal trial. Absent testimony from the defendant, chances
are high that the restraining order will enter. That may seem unfair,
but it's a reality. Whether to testify or not is defendant's
decision.
2. I may, but am reluctant to
call defense witnesses at PRO hearing. The trial date is so quick in a PRO
hearing that adequate time for preparation is not available. If the
witness' later recalls a different fact, event or circumstance which may be
offered at the criminal trial, but was not given in testimony at the PRO
hearing, that testimony or evidence would be subject to impeachment at the
criminal trial. Typically after initial investigation, I would confer with
my client regarding the risks and this particular trial tactical decision.
3. The primary purpose of representation
at the restraining order hearing is an opportunity to cross examine the
alleged victim under oath, and obtain statements for use in the criminal
trial. A transcript of the PRO hearing will be ordered and can be used
for impeachment of the alleged victim at the criminal trial.
4. If a defendant later obtains a not
guilty verdict or dismissal of criminal charges within six (6) months of the
permanent injunction, defendant may file an action to set aside the injunction
alleging fraud or misrepresentation by the victim. The motion would be
based upon variance of testimony between the proceedings. My experience is that such
motions for relief are futile.
5. Under domestic violence
criminal court "fast track" procedures, the criminal trial will be set
60 days from the advisement, which is usually held the next business day after
the alleged offense. If plaintiff will agree to a continuance of 120 days
in the civil suit, criminal jury trial will likely be concluded.
a. If a not guilty verdict has been entered, the civil court can take
judicial notice of the not guilty verdict, however the burdens of proof are
different.
b. If a not guilty verdict has been entered, plaintiff may "lose
steam" and dismiss the civil injunction.
c. Transcript from the criminal trial could be used for impeachment in the
civil case.
It has been my experience that if the
court is to error, it will be on the side of caution with entry of a permanent
restraining order (PRO). While unfavorable to any defendant, that makes
common sense. If a PRO were denied and the alleged victim were to be
shortly thereafter, seriously injured or killed, that would subject the court to
a high degree of publicity. Put simply, this is an uphill battle.
DOMESTIC ABUSE RESTRAINING ORDERS
APPEAL or
REVIEW
BY DISTRICT COURT JUDGE |
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Ok, the hearing is over & the
order entered. You're not a happy person & don't agree with the
magistrate's ruling. What next? It depends upon whether the order
was entered by a county court magistrate or a district court magistrate.
Most domestic restraining orders are brought in county court under the domestic
abuse restraining order statute and will have a county court magistrate
presiding. If the restraining order is initiated within and as a part of a
divorce or paternity action, a district court magistrate may likely enter
orders. Similarly, nuisance injunctions are frequently brought in district
court and a district court magistrate would preside. |
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REVIEW
COUNTY COURT
MAGISTRATE ORDERS OR JUDGMENTS
C.R.M. 9
generally relevant to domestic abuse restraining
orders
entered under domestic abuse statutory authority
(a) An order or
judgment of a county court magistrate shall be the order or judgment of the
county or small claims court.
(b) Any party to a proceeding
before a county court magistrate shall appeal an order or judgment entered by
the magistrate in that proceeding in the manner authorized by statute or rule
for the appeal of orders or judgments of the county court.
Ok, so I can't ask for a judge to review the magistrate's
ruling, but must ask for a new trial or appeal.
What's that mean & how quickly must I do that?
County Court New
Trials & Amendment of Judgments
C.R.Civ.P.
359 
Refer to the above link
Filing time limit - 15 days from date of order
Relief from Judgment or Order
C.R.Civ.P. 360
Refer to the above link
(a) Filing time limit clerical mistakes - may be
corrected at any time
(b) Filing time limit mistake; inadvertence; surprise; excusable neglect;
fraud; etc. -
Reasonable time - not to exceed 6 months
Appeal from County Court to District Court
C.R.Civ.P. 411
Refer to the above link
Filing time limit - 15 days from date of order
Bear In Mind
Harmless Error -
C.R.Civ.P. 361
No error in
either the admission or the exclusion of evidence and no error or defect in any
ruling or order or in anything done or omitted by the court or by any of the
parties is ground for granting a new trial or for setting aside a verdict or for
vacating, modifying, or otherwise disturbing a judgment or order, unless refusal
to take such action appears to the court inconsistent with substantial justice.
The court at every stage of the proceeding must disregard any error or defect in
the proceeding which does not affect the substantial rights of the parties.
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REVIEW
DISTRICT COURT MAGISTRATE
ORDERS OR JUDGMENTS
C.R.M. 7
Refer to the above link
generally relevant to restraining orders entered in
divorce or paternity actions
C.R.M. 7 makes consent
distinctions. "With consent" and "without consent"
categories established in C.R.M. 6. Thus, review of matters that may be heard by
a magistrate without consent of the parties is governed by C.R.M. 7(a).
Conversely, review of those matters that, by rule or statute, required the
consent of the parties is governed by C.R.M. 7(b). People ex rel. Garner v.
Garner, 33 P.3d 1239 (Colo. App. 2001).
"WITHOUT CONSENT"
The chief district court judge has
designated one or more district court judges to review orders or judgments of
district court magistrates entered without consent of the parties.
If a restraining order or denial
of a restraining order was entered by a district court magistrate, a party may
obtain review of the order by filing a motion to review such order with the
reviewing judge. The motion must state with particularity the alleged errors in
the magistrate's order or judgment and may be accompanied by a memorandum brief
discussing the authorities relied upon to support the motion. It must be filed
within fifteen (15) days from the date of the order, or it becomes the order of
the district court. C.R.M. 7(a)(3) If a party fails to file the motion for
review with 15 days or otherwise fails to comply with the review rules of
procedure, the party is not entitled to appellate review of the order. C.R.M.
7(a)(4) If you snooze, you lose.
Failure to file motion for
review with the reviewing judge justifies dismissal of appeal with prejudice. Matter
of Estate of Burnford, 746 P.2d 51 (Colo. App. 1987); Estate of Jordan
v. Estate of Jordan, 899 P.2d 350 (Colo. App. 1995); In re Estate of
Hillebrandt, 979 P.2d 36 (Colo. App. 1999).
A party is not entitled to
appellate review unless the party has first filed a timely motion for district
court review of the magistrate's order. Such a motion for review must be filed
within 15 days after the date of the magistrate's order. In re McCord,
910 P.2d 85 (Colo. App. 1995).
When a magistrate enters an
order outside the presence of the parties, the 15 days to file for review of
the order begins to run on the date the order is mailed, not the date the
order is made. In re Talbott, 43 P.3d 734 (Colo.App. 2002).
At the time of filing the motion
for review, the party seeking review may file a brief setting forth facts &
relevant law in support of his or her claim that the magistrate committed error.
Within ten (10) days after being served, the party served may likewise file file
a brief setting forth facts & relevant law in support of his or her claim
that the magistrate committed error or did not commit error.
The reviewing judge shall consider
a motion for review on the basis of the motions and briefs filed, together with
such review of the record as may be necessary. Findings of fact made by the
magistrate may not be altered unless clearly erroneous. The reviewing judge may
conduct further proceedings, take additional evidence, or order a trial de novo
(completely new trial) in the district court. The reviewing judge shall adopt,
reject, or modify the initial order or judgment of the magistrate by written
order, which order shall be the order or judgment of the district court. C.R.M.
7(a)(3)
TRANSCRIPT
MAGISTRATE PROCEEDINGS
FOR REVIEW BY DISTRICT
COURT JUDGE
Because review is had upon the
record, it is advisable to order a transcript of proceedings before the
magistrate, including all testimony, statements, arguments and evidence
received.
District court erred in denying
appellant's motion for review based on the failure timely to provide a
transcript. The Colorado rules for magistrates do not contain a separate section
on procedure or any procedural rules specifying any time limits for filing a
transcript of a hearing before a magistrate. There is no requirement that a
transcript be filed at all in a review proceeding, and there is no requirement
that the district court must consider a transcript, if one is provided, when
reviewing a magistrate's order. In re Schmidt, 42 P.3d 81 (Colo. App.
2002).
"WITH CONSENT"
If the restraining order or denial
of a restraining order was entered by a district court magistrate with the
consent of the party seeking review, the order is not subject to review by the
district court. It would then be subject to appeal to the Court of Appeals under
the Colorado Appellate Rules (C.A.R.) as any other order of the district court.
That’s expensive - if you want a district court judge rather than a magistrate
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DOMESTIC ABUSE RESTRAINING ORDERS
OTHER
SANCTIONS
AND
AVAILABLE RELIEF
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EMERGENCY PROTECTIVE ORDERS (EPO)
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An EPO an be obtained immediately if necessary. Law enforcement officers
have 24 hour access to a judge and may issue an order with court approval
removing a spouse from a residence if facts warrant. Dial 911
Authority: CRS 14-4-103 |
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DIVORCE & PATERNITY - LEGAL PARENTAGE
INJUNCTIVE RELIEF |
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a. Temporary restraining
order. A temporary restraining order or preliminary injunction or other
relief is available in a divorce action CRS 14-10-108(2) or paternity (legal
parentage) action. CRS 19-4-111(4)-(6) and CRS 14-10-108(2) Such an
injunction can not extend more than one year past the date of final decree in
dissolution of marriage. A permanent injunction
(restraining order) may be obtained in a separate County Court lawsuit, and the
separate action may be transferred to the divorce court and heard by the judge
presiding over the divorce action.
b. Abuse will not be tolerated by the courts. By law prior criminal charges,
abuse injunctive proceedings and child abuse dependency and neglect proceedings
must be disclosed in writing to the judge at the time of filing for divorce or
paternity.
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VIOLATION ENFORCEMENT OR SANCTIONS |
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Criminal Charges |
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Violation of a restraining order can be enforced by criminal charges
a. Refer to link
violation of restraining order for additional information regarding the
criminal charge
b. Refer to link
domestic violence for additional information regarding prosecution
c. Refer to link
sentencing
for additional information regarding sentencing
class M-2 or M-1 domestic violence offense |
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Contempt of Court |
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a.
Authority.
1. Pursuant to CRS 13-14-102(13, a person failing to comply with any
domestic abuse restraining order issued pursuant to CRS 13-14-101 et. seq. shall
be found in contempt of court or may be prosecuted for violation of a civil
restraining order pursuant to CRS 18-6-803.5.
2. Violation of a restraining order can be enforced by contempt of court
C.R.Civ.P. 107 and CRS 14-10-118 - maximum 6 months jail and/or maximum $500
fine
b. Preliminary
Proceedings. Since incarceration
(jail) is an option, in accord with Constitutional protections, the Court will
advise the obligor of his / her rights. Additionally, the Court may
require
mediation
through the
Office of Alternate Dispute Resolution - ADR - Mediation prior to final
orders hearing. Refer to the
mediation
link for additional information. Mediation is less likely in restraining
order contempt proceedings than in other types of contempt, such as non-support
enforcement.
c.
Evidence.
Evidence must be presented of the contemnor's act which violates the court
order. This may take the form of testimonial evidence from victim,
witness, law enforcement officers, medical provider or admission by
contemnor. Evidence may be direct or circumstantial. Witnesses
may be placed under subpoena and subpoena duces tecum may enter for
production of tangible evidence such as phone records or any other physical
evidence. It is the protected person's burden to establish that the
restrained person failed to comply with the restraining order.
d.
Criminal contempt.
The protected person has the burden to establish that the restrained person had
the ability to comply with the court order, and willfully failed or refused.
Once evidence of violation is established, ability to comply is generally not
difficult - the burden was merely to refrain from some voluntary act. The
court may take judicial notice of the restraining order which identifies the
prohibited act. Upon a finding of criminal contempt, to vindicate the
dignity of the Court, the judge may sentence the obligor to a term certain not
to exceed 6 months county jail and / or $500 fine. Criminal contempt is
the most likely remedy when enforcing a restraining order. If jail is
required to impress upon the restrained person that he / she must obey the
restraining order, education is appropriate.
e.
Civil contempt.
The protected person has the burden to establish that the restrained person has
the current ability to comply with the court order, and is currently willfully
failing or refusing. Upon a finding of civil contempt, the judge may
sentence the obligor to an indefinite term until the obligor complies with the
order. This is known as "he who holds the keys to the jailhouse door."
This particular remedy is better suited to non-support contempt of court
enforcement, and is unlikely in restraining order enforcement. |
DOMESTIC ABUSE RESTRAINING ORDERS
OTHER
CONSEQUENCES |
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CBI CENTRAL
REGISTRY
IDENTIFICATION AS DOMESTIC ABUSER |
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Pursuant
to Colorado law, a central registry identifying domestic abusers is maintained
by the
Colorado Bureau of Investigation (CBI) in Denver. When a domestic
violence injunction (restraining order) has entered or a domestic violence
criminal conviction, a person is identified and tagged with the case number and
location. In a domestic disturbance call, once the parties are identified law
enforcement officers immediately check the CBI central registry. If your name
pops up, guess who is likely to be charged in a new investigation? Same song,
second verse except the jury potentially hearing about a prior. The Department
of Human Services (DHS - formerly DSS) maintains a statewide identification
central registry of all reported child abuse. These records have major impact
upon a person's future, not only pertaining to potential future criminal
charges, but possibly affecting education or employment opportunities. Jury
trial is likely a criminal defendant's only alternative to pleading guilty or accepting an offer
which leaves the person vulnerable.
FEDERAL LAW - FIREARMS
AND AMMUNITION
If a person is convicted of a crime of domestic violence, or if a civil domestic abuse
restraining order (injunction) enters against a person, firearm or ammunition
ownership or possession becomes a thing of the past. Federal law prohibits.
Also, with a domestic violence conviction or a domestic abuse restraining order,
in addition to possession or ownership, attempting to purchase a firearm or
ammunition is a federal felony. See federal statutes
18
U.S.C.A. §§ 921, 922 et. seq. If firearms or ammunition are required for present or future employment,
say good-bye. At present it appears to this attorney that a deferred sentence to
a domestic violence crime with subsequent dismissal does not impact firearm or
ownership purchase, ownership or possession. Check with a gun dealer or the
local sheriff's office.
Forty-six-month sentence for possession of a firearm while under a domestic
violence restraining order upheld. United States v. Baker, 197 F.3d 211,
217 (6th Cir. 1999)
POTENTIAL JOB LOSS OR JOB
UNAVAILABILITY
Upon entry of a domestic abuse restraining order, if a person in employed of
seeks employment in an occupation which requires firearms, such a law
enforcement, a new career choice would be in order. That would also apply
to any field in which the employee is a care giver and could potentially apply
to any employment occupation wherein a background check is conducted.
POTENTIAL IMPACT UPON
FUTURE RELATIONSHIPS
Finally, it would not be uncommon for a person to run a background check on a
prospective new mate. Identification as a domestic abuser and an active
domestic abuse restraining order would not be the first choice for character
reference.
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DOMESTIC ABUSE RESTRAINING ORDERS
OTHER
POTENTIAL
LEGAL PROCEEDINGS |
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DIVORCE FROM PRESENT SPOUSE |
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If domestic abuse or domestic violence is alleged, dissolution of marriage is
foreseeable if the parties are married. I have included a link to
information pertaining to common law marriage for reference if website visitors
are wondering whether they are common law married. If you have questions, refer to the
links. |
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PATERNITY
ACTION - LEGAL PARENTAGE |
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If the parties are not married, but cohabitating with a common children or
children, and if domestic abuse or domestic violence is alleged, break up of the
relationship is foreseeable. When parties with children separate, it would
be common for a paternity (legal parentage) lawsuit to be filed to establish
paternity, allocation of parental responsibilities (child custody), parenting
time (visitation) and child support. If you have questions, refer to the
link. |
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DOMESTIC VIOLENCE CRIMINAL CHARGES |
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If domestic abuse is alleged, domestic violence criminal charges may have
already been filed, or may be filed in the foreseeable future. If you have questions, refer to the
links. |
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RESTRAINING ORDERS - NOT DOMESTIC
ABUSE |
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Restraining orders are available under the Colorado Rules of Civil Procedure in
circumstances which do not involve an intimate relation and do not involve
domestic abuse or domestic violence. County
Court C.R.Civ.P. 365
County Court restraining orders enter for one of two
purposes:
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Assault
a. Plaintiff files suit alleging
defendant has assaulted, attacked, beaten, molested, or threatened the life
of the plaintiff, or threatened to do serious bodily harm to the plaintiff.
b. Security (bond) may be required
c. A temporary restraining order
may enter before final hearing.
d. At hearing, if the court finds
that the defendant has committed acts identified above and that unless
restrained and enjoined will continue to engage in such acts, the court will
enter a permanent restraining order.
e. Every order granting an
injunction and every restraining order must set forth the reasons for its
issuance; must be specific in terms and must describe in reasonable detail
the restrained act(s).
e. Upon the consent of all
parties, the court may direct that the order be a mutual, permanent
restraining order. This provision is distinct from domestic abuse
restraining orders which may to be made mutual.
Restrictive Covenants on Residential Real Property
a. Plaintiff files suit alleging
defendant has violated a restrictive covenant on residential real property,
and that immediate and irreparable injury, loss, or damage will result to
the plaintiff unless a restraining order enters.
b. Security (bond) may be required
c. A temporary restraining order
may enter before final hearing.
d. At hearing, if the court finds
that the defendant has committed acts identified above and that unless
restrained and enjoined will continue to engage in such acts, the court will
enter a permanent restraining order, which may prohibit an action or make an
action mandatory.
e. Every order granting an
injunction and every restraining order must set forth the reasons for its
issuance; must be specific in terms and must describe in reasonable detail
the restrained or mandatory act(s).
District Court
C.R.Civ.P. 65
District Court restraining orders enter primarily to abate a
nuisance or provide equitable relief
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Plaintiff files suit alleging defendant has violated a restrictive covenant
on residential real property, and that immediate and irreparable injury,
loss, or damage will result to the plaintiff unless a restraining order
enters.
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Security (bond) may be required
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A
temporary restraining order may enter before final hearing, valid for ten
days only, and upon application may be renewed for an additional ten days.
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At
hearing, if the court finds that the defendant has committed acts identified
above and that unless restrained and enjoined will continue to engage in
such acts, the court will enter a permanent restraining order, which may
prohibit an action or make an action mandatory.
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Every order granting an injunction and every restraining order must set
forth the reasons for its issuance; must be specific in terms and must
describe in reasonable detail the restrained or mandatory act(s).
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C.R.Civ.P. 65 does not apply to suits for dissolution of marriage, legal
separation, maintenance, child support, or custody of minors. In such suits,
the court may make prohibitive or mandatory orders, without notice or bond,
as may be just.
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SEALING
CIVIL RECORDS |
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If you are the defendant in a restraining order domestic abuse restraining order
case and are successful defending, or if the case is dismissed for any reason,
it would be advisable to move to seal the civil lawsuit records. If you have questions, refer to the
link.
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DOMESTIC ABUSE RESTRAINING ORDERS
OTHER
POTENTIAL ISSUES |
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CHILD CUSTODY & VISITATION
The court previously decided legal custody (decision making),
physical child custody (where a child lived) and visitation ( the schedule upon
which the non-custodial parent was entitled to see a child) based upon the best
interest of the children. In effort to eliminate the idea that children are
items to be awarded in a divorce, terminology has changed. Custody and
visitation no longer exist in Colorado except as is required for tax
exemptions. CRS
14-10-131.7
The court in a restraining order case does not have jurisdiction (power) to
address the issues of allocation of parental responsibilities and parenting
time; the issues may not be raised in this type of a proceeding. For an
order to enter regarding allocation or parental responsibilities or parenting
time, a
dissolution of marriage,
legal
separation or
paternity
case must be filed. Refer to links for information.
Because decisions must be made quickly regarding children, the court in a
restraining order case does have jurisdiction (power) to and will address the
issue of children's temporary care and control for
a period of not more than 120 days. Refer to the link. This allows
sufficient time to file a
dissolution of
marriage,
legal separation
or
paternity case.
CHILD SUPPORT
The court in a restraining order case does not have jurisdiction (power) to
address the issue of child support. the issue may not be raised in this
type of a proceeding. For a child support order to enter, a
dissolution
of marriage,
legal separation
or
paternity case must be
filed. Refer to links for information.
"PALIMONY"
OR
MAINTENANCE
The court in a
restraining order case does not have jurisdiction (power) to address the issue
of family support.
If
the parties are married, either party may file for
dissolution
of marriage,
legal separation
and seek spousal maintenance in that case.
If the
parties are not married, neither may file any lawsuit for support from the other
- aka "palimony." Spousal maintenance does not exist in Colorado unless the parties were married
by
common law marriage
or statutory marriage (judge or clergy ceremony). "Palimony" or
maintenance support between non married cohabitating partners is therefore
unavailable in a paternity action. If the parties cohabitated, there is a
legal theory for partner support based in contract law. The landmark case is Marvin v. Marvin, 18 Cal.3d 660 (1976).
While the actor Lee Marvin's case has been cited in two Colorado cases - Salzman
v. Bachbrach, 996 P.2d 1263, 1267-1268 (Colo. 2000) (see property above) and
In
re Estate of Lewis, 652 P.2d 1106, 1108 (Colo. App. 1982), "palimony"
has not been adopted in Colorado to this attorney's knowledge.
PROPERTY AND RESIDENCE
E.T. LEAVE HOME
( and don't bother to phone or you go to jail )
The court in a
restraining order case or paternity case does have jurisdiction (power) to and will address the issue
of one party vacating a common residence. The restrained person must
vacate the common residence immediately upon service of the temporary
restraining order. The restrained person, when accompanied by a law
enforcement officer, may remove a few necessary
personal
effects necessary to survive pending final orders hearing. Refer
to link for information.
Property - Married Persons
a. Real Property. If
the parties are married, either party may file for
dissolution
of marriage,
legal separation
and in that case either party may request an order
for
exclusive
possession of the family residence at
temporary orders hearing and may request sale or other disposition at
final orders hearing.
One party may be required to wait
until final orders hearing to divest the other party of possession. A
mandatory
waiting period of 90 days exists in dissolution of marriage;
finalization may take several months. If a divorce is coming, the excluded
party is well advised to commence the dissolution of marriage proceedings and
timely pursue the case to final orders.
b. Personal property is similar. Usage of some may personal property may be
obtained at temporary orders hearing in a dissolution of marriage, but full
division
will await final orders hearing.
Property - Unmarried Persons
Property is a totally different circumstance if
the parties are not married.
a.
Jurisdiction
1. The county court
in a domestic abuse restraining order action does not have jurisdiction to order possession
or division of real property or personal property.
2. The juvenile court
in a paternity action does not have jurisdiction to order possession or division
of real property or personal property.
b.
Shared Residence
1. Residence owned by party in possession. If the residence
is owned by the party in possession, no dispute exists with respect to
possession. Possession follows ownership.
2. Residence owned by excluded party. If the restrained person owns the residence and the protected person has no
ownership claim (shack job), the protected person may initiate a separate forcible entry
and detainer lawsuit pursuant to CRS 13-40-101, et. seq.. However, the
restrained person shall not be entitled to return to the residence until such time as a valid writ of restitution is executed, filed with the court issuing the restraining order, and the restraining order is modified accordingly.
CRS 13-14-102(8)(c) Put another way - if the restrained person has sole
ownership of the residence, the protected person may have exclusive use of the home.
The restrained owner is not permitted back into his / her home until an
FED order has entered and the temporary or permanent restraining order has been
modified. What a bummer.
3. Excluded party made contributions toward residence. If the
excluded party without ownership interest (title) contributed to the
purchase or debt amortization of the property and claims some entitlement and the parties are unable to
agree upon division, a separate lawsuit should be brought in District Court -
unjust enrichment, joint venture or analogous to dissolution of a partnership
seeking distribution of partnership assets. This type of lawsuit is
founded in contract law, and the excluded party must overcome a foreseeable
argument that contributions constituted rent or a completed gift.
4. Jointly owned residence. Similar to ¶(b)(3), if the parties are unable to
agree upon division, a separate lawsuit should be brought in District Court -
unjust enrichment, joint venture or analogous to dissolution of a partnership
seeking distribution of partnership assets. This type of lawsuit is
founded in contract law.
c.
Personal Property,
Including Motor Vehicles
1. Separate property divided. If each party has received his
/ her personal property, no dispute exists with respect to possession.
Possession follows ownership.
2. Separate property retained by other party. If the personal
property has not been divided:
a. Communications
1. The restrained person may not contact the protected person for any
reason, including property distribution. Counsel may do so.
2. If the protected person contacts the restrained person for any reason,
including property distribution, the protected person risks invalidating the
restraining order or creating a defense to contempt or prosecution.
Counsel may contact the restrained person.
b. If the other party is unwilling to make distribution of personal
property claimed by the other, the person claiming ownership may initiate a
separate replevin or trover lawsuit pursuant to C.R.Civ.P. 104, 404, CRS
13-6-403, CRS 13-16-106, CRS 13-80-101. Trover for a horse. However, the
restrained person shall not be entitled to possession of the property until a
the sheriff has executed upon a valid replevin order. Put another way - if
one party will not give the separately owned personal to the rightful owner,
separate lawsuit is required to recover the disputed property or money
damages. What messes people can create.
3. Non-owning party made contributions toward personal property.
If the party without ownership interest (title) or without possession of
untitled property contributed to the
purchase or debt amortization of the property and claims some entitlement, and
if the parties are unable to
agree upon division, a separate lawsuit should be brought in District Court -
unjust enrichment, joint venture or analogous to dissolution of a partnership
seeking distribution of partnership assets. This type of lawsuit is
founded in contract law, and the non-owning or non-possessing party must
overcome a foreseeable argument that contributions constituted rent or a
completed gift.
4. Jointly owned personal property. Similar to ¶(c)(3),
if the parties are unable to
agree upon division, a separate lawsuit should be brought in District Court -
unjust enrichment, joint venture or analogous to dissolution of a partnership
seeking distribution of partnership assets. This type of lawsuit is
founded in contract law.
a. If the parties cohabitated
and personal property has not been divided, do so immediately.
b. When you make division of your personal property,
divide as much as possible, and make one move. Disagreements are caused when one
of you continually contacts the other requesting minor items of personal
property. Identify those items on which you disagree; your attorney will
negotiate or a court hearing may be necessary. The goal is to identify &
minimize those items which are contested. Don't sweat the small stuff; be
flexible without giving up important matters. If you take petty personal
property issues to hearing in a separate civil case, a judge could easily order
all property to one party or the other, or could order property sold at public auction and division of proceeds.
Remember, attorney's fees and litigation costs may exceed the value of the
property.
d.
Unmarried Cohabitation. It is this attorney's understanding absent
common
law marriage or statutory marriage (judge or clergy ceremony) or contribution and unjust
enrichment, neither party acquires any right in or to property of the other
unless by contract (express or implied) which would be scrutinized as under
standards of Salzman v. Bachbrach, supra. Colorado
does not have "marital property or community property" law with
reference to mere cohabitation by unmarried persons.
See Salzman v. Bachbrach, 996 P.2d 1263
(Colo. 2000)
Where past, present, and future sexual relations were the sole consideration
for the original delivery of a thing of value, the contract mirrors a contract
for prostitution which is immoral, unlawful and void. Neither law nor
equity will aid either to enforce, revoke or rescind. Id at 1266
- 1267.
Non-married cohabitating couples
may legally contract with each other so long as sexual relations are merely
incidental to the agreement. Couples may ask a court for assistance, in
law or in equity, to enforce such agreements. Id at 1267
Cohabitation and sexual relations
alone do not suspend contract and equity principles. We do caution, however,
that mere cohabitation does not trigger any marital rights. A court
should not decline to provide relief to parties in dispute merely because
their dispute arose in relationship to cohabitation. Rather, the court should
determine as with any other parties whether general contract laws and
equitable rules apply. Where sexual relations with the other
cohabitating partner are not the sole motivation, cohabitation does not bar
suit in equity. Id at 1268 - 1269
e. Untangle Co-Mingled Finances. If you co-mingled
your finances, advice in divorce cases still stands - close all joint
accounts and separate your finances as best as possible without separate lawsuit
court intervention.
1. Close
all joint charge accounts immediately. Notify creditors by certified mail
that you will no longer be responsible for future debt incurred by the other
parent. Send creditors one-half of the charge card of the parent who will no
longer have charge privileges, or close the account entirely if need be. This
includes utilities and checking accounts as the other parent may write bad checks.
Closing joint liabilities is simply good business and eliminates possible
disagreement later. It may be uncomfortable to discuss this with the other
parent immediately. You may believe excessive charging to be out of character for
the other parent. You may fear the finality this seems to bring. Do it anyway &
do it now - attorneys see this problem frequently. Close all joint accounts
immediately. ...twice written intentionally.
2. Close all joint savings accounts,
and divide the proceeds fairly. If you anticipate problems, transfer the
proceeds to a savings account in your name only, and hold (not spend) the
proceeds until final disposition can be made. It is easier to give the money
to the other parent than to ask for it back. This office recommends immediately
after you have withdrawn the money, you convert the new savings account to
an account where withdrawal is possible only upon the signature of both you
and the other parent; check with your bank for availability. Protect your
savings.
f.
Physical Separation. If
cohabitating, there is no pleasant or enjoyable way to physically separate. If necessary,
either party
may hire an off duty police officer to be present and keep the peace while
household goods are being physically moved. You may attempt to hire an off duty
law enforcement officer by calling the
Colorado Springs Police
Department or the
El Paso County Sheriff's
Office. No officer will
participate in deciding who may take or keep individual items, the officer will merely
keep the peace. Plan on $50+ minimum. To provide for an efficient and
rapid move, make certain sufficient manpower, truck space,
dollies, pads, etc. have been arranged in advance.
g. Common Sense. Attorney's fees and
costs may exceed the value of the property. Also, in the event of property
litigation, dispute between the parties is not over. Peace is benefit
in and of itself. Sometimes it is appropriate to write off an asset or
loss, and chalk it up as a bad experience. Bear in mind, you chose to
enter into the relationship.
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"NUDIE
PICS" or "SEX PICS" or "BLUE MOVIES"
Potentially Quite Serious
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Especially with today's digital technology, it is not uncommon for intimate
partners to have taken "nudie pics" or "sex pics."
1. Such video or photographs are not unlawful
so long as taken by and between consenting adults for their own use and not
disseminated to third persons without consent. If they exist and you are
separating, destroy the images in the presence of each other so you will both
be satisfied of the destruction.
2. If either party is making threats of
prosecution or civil litigation:
a. The first issue is whether from
the camera angles it is apparent the photographs were taken with the camera in
plain view, not hidden. The image will evidence whether the photo or
video shot was surreptitiously taken, or taken in full view with knowledge and
consent of the subject. The image itself will usually be evidence the
subject was a willing participant, and that the image(s) were taken at his or
her request or with consent.
b. 1. Do not show the images to any third person, or
post on the internet.
2. If
it is evident from the images that they were created with equipment in plain
view, the originals or a copy should
be maintained in an evidence locker of an attorney or a private investigator
retained by an attorney.
3. If
it is evident from the images that they were created with equipment
surreptitiously placed (a "hidden camera"), unless you plan to make
full disclosure or charges have been filed and the images have been previously
seized, neither advise me of the existence of such images nor provide the
evidence to me. Refer to the
Client
Warning Notice which applies to all attorneys. Additionally, any
advice regarding evidence of a crime this would create an evidentiary ethical
dilemma for any attorney - "the smoking gun" as it were.
c. Criminal charges may be filed if
such pictures, images or video are taken without the knowledge or consent of
the subject.
Unlawful
sexual contact -
sex
offense -
registered
sex offender
-
serious. Refer to links for information.
d. Make no statements to any
third person, including but not limited to law enforcement agents. If
relevant, consult counsel immediately.
e.
The
DA Office
does prosecute cases of this nature.
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DOMESTIC ABUSE RESTRAINING ORDERS
AWARD OR DENIAL
ATTORNEY FEES
& COSTS |
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At the permanent restraining order hearing, the court may require the respondent to pay the filing fee and service-of-process fees, as established by the state agency, political subdivision, or public agency pursuant to a fee schedule, and to reimburse the petitioner for costs incurred in bringing the action.
CRS 13-14-102(21)(c)
Where
the above statute provides for Petitioner's recovery, I would argue equal
protection requires the court to consider attorney's fees and costs incurred by
a respondent in the event a restraining order is denied.
In addition to the
frivolous suit statute (13-17-102. attorney fees and 13-17-103. Procedure for determining reasonable fee - judicial discretion).
If awarded, the court must make findings as to the amount and reasonableness
of attorney's fees and costs.
COUNSELING
AND THERAPY
In
every case where children are involved, this attorney recommends you consult a
psychiatrist, psychologist or licensed social worker to learn more about what
impact your separation will have on the children, and how to effectively
cope. Advance knowledge will likely assist you in neutralizing negative
circumstances and minimizing injury to your children.
Divorce or breakup of a significant relationship is a major life event, as
is death of a loved one. Do not feel stigmatized by seeking professional
advice. The fact you are inquiring into restraining orders or other
legal remedies indicates your marriage or relationship is in serous trouble,
and perhaps your entire family structure. Consulting a mental health
professional is quite likely the best course of action you could take at
this point. If the children are exhibiting trauma or unusual behavior,
by all means immediately consult a mental health professional.
As a governmentally subsidized agency,
Pikes
Peak Mental Heath bills fees on a sliding scale based upon income.
Many private therapists or counselors are also located in town. You
may not desire extended therapy, however don't hesitate to at least touch
base, regardless of whether or not you have children.
It is advisable for everyone who undergoes breakup of a marriage or other
significant relationship to attend a
recovery
workshop. Attendance may likely assist you with grief and
recovery. They are free or inexpensive - all it takes is one night a week
for about 8 weeks. Who knows, even if initially you don't think it is
worthwhile, you may learn something.
Refer to:
Resources
- Counseling
page for a summary list of available local resources
DV
- Classes
page for a summary list of state certified domestic violence counseling
programs.
T*E*S*S*A
fka The Center for Prevention of Domestic Violence has safe-housing available
in cases of physical or emotional abuse if the facts warrant. Occupational and
therapy counseling is also available plus information on other agencies.
For more information, follow the link:
Safe
House & Women's Resources
Alcoholism or drug addiction can occur at any age, socio-economic background,
race or religion. Think it can't happen to you or a loved one? - think again. As with other
illnesses, dependency doesn't care who are, what you are, how old you are, or
where you come from. If client, loved one or opposing parent has an alcohol or drug problem, he /
she should also
immediately commence attending at least 1 AA
or NA meeting per week. Address the problem and get it under control before it has a chance to destroy
the quality of life. Support is available.
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INDEPENDENT SERVICE PROVIDERS |
Where relevant, I utilize
the services of independent professionals. Rates of independent
providers of professional services change periodically and billings are not
controlled by counsel.
If retained by counsel as an
agent of the attorney, such independent service providers are bound by the
attorney-client privilege. If retained privately by the client, no such
agency or confidentiality exists.
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DOMESTIC ABUSE RESTRAINING ORDERS |
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ATTORNEY'S ROLE AND ASSISTANCE |
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Given the rapid settings of final order hearing, the attorney's role in domestic violence
cases is trial attorney, not negotiator. To learn the facts from the
client's
viewpoint, the attorney will discuss the facts of your case with you.
The factual interview frequently takes sufficient time to learn not only the
events alleged, but the relationship history. To learn of
evidence of which you may not be aware, I will investigate your case to the
extent possible prior to final hearing
Your case
will be investigated and prepared for trial. During investigation in the criminal
case:
a. Counsel looks for evidence
1. exculpatory. tends to negate commission of the
alleged act(s)
2. inculpatory. tends to establish or support
commission of the alleged act(s)
b. Counsel uses a private
investigator to uncover facts and potential testimony - both favorable and
unfavorable.
c. Being detached and uninvolved, counsel can then
sift through the information with an unconvoluted and
clear mind looking for patterns, defenses
or persuasive arguments and devise a strategy for hearing.
Plaintiff should not expect defendant to stipulate to entry of a restraining
order or fail to appear.
Defendant should not expect plaintiff
to stipulate to dismissal or fail to appear.
Overview of trial preparation.
a. Counsel will interview the
client to ascertain facts, evidence and potential witnesses.
b. Services of a private
investigator will be utilized to interview witnesses, including opposing party.
c. Subpoena will be served upon
any favorable witness to assure appearance at hearing.
c. Subpoena duces tecum will be
served upon law enforcement 911 & dispatch for tapes and records.
e. Litigation history of
plaintiff and defendant will be checked for other relevant cases.
f. Depending upon whether
counsel represents plaintiff or defendant:
1. If there is reason to
believe plaintiff has previously claimed to be an alleged victim and has
initiated criminal charges against a third person, subpoena duces tecum may be
served upon the clerk of court in the relevant county for records. It is
otherwise impossible to ascertain an alleged victim in criminal cases.
2. If defendant has a prior history of domestic abuse, restraining orders
or domestic violence criminal conviction, such may be admissible as common plan,
scheme, or design, lack of mistake, intent, or other theory.
g. Counsel will prepare exhibits for
introduction into evidence, direct and cross examination of all witnesses, and
closing argument, then litigate.
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DOMESTIC ABUSE RESTRAINING ORDERS
DO I NEED AN
ATTORNEY? |
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Do I need an attorney?
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Probably time to loosen the
pocket book and hire a family law / criminal defense attorney.
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PLAINTIFF
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Staff
members from
T*E*S*S*A
will assist in preparing the complaint and will escort victims to the
courthouse to file and to the final orders hearing for emotional
support. They are not legal counsel..
Legal counsel will be familiar with the law,
evidence required to procure a permanent restraining order, trial
procedures, and defenses.
It's the prospective client's call, but if an
alleged victim is legitimately fearful of the alleged perpetrator,
professional assistance is advisable. You need not retain my
services, but hire counsel.
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DEFENDANT
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In
addition to issuance of a permanent restraining order, there are other
long term and quite serious consequences which will result if a
permanent restraining order enters.
Legal counsel will be familiar with the law,
evidence required to procure a permanent restraining order, trial
procedures, and defenses.
In my opinion, a defendant needs an attorney
more than a plaintiff. You need not retain my services, but hire
counsel.
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At the time of the first
visit, a prospective client will be quoted attorney's fees and estimated costs. The quote will
be honored for a period of seven (7) days, after which it is subject to change
without notice if this office has not been retained. Attorney is a sole
practitioner with need to manage his caseload. Pending proposed client
acceptance and payment, retainer agreement proposals are subject to
withdrawal. Attorney reserves the right to decline any case.
In most circumstances, attorney initially makes an option offer of 1.) billing
to be upon hourly fees, or in the alternative, 2.) quote of a flat fee through
trial court final hearing.
ELECTION.
Offered fee options will be up to the client, however client's initial election will be
final.
Included in attorney's primary website is a
web page devoted to clear definition & understanding of free
first
consultation, fees and costs, retainer agreement and terms of
representation. Additional
information regarding fees & costs may be found via the links
following potential quotes.
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POTENTIAL
FEE QUOTE
DOMESTIC
ABUSE RESTRAINING ORDERS |
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PLAINTIFF
REPRESENTATION
OR
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DEFENDANT REPRESENTATION
NO DOMESTIC VIOLENCE
CRIMINAL CHARGES PENDING
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I generally offer hourly fees
or a hearing flat fee. Domestic abuse
restraining order cases are non-negotiable. Permanent restraining order enters
or it doesn't - contested hearing is required. The hearing flat fee would be dependent upon the facts
and circumstances of the case, however the above would be a common quote in
domestic abuse restraining order cases. This shall neither constitute an offer, nor
be construed as a binding estimate. |
If the case involves allegations
of prior conviction or misconduct to be introduced by either party for a
collateral purpose, the attorney would need to know more about the facts and
circumstances before offering a hearing flat fee or quoting a trust deposit
request for anticipated costs |
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trust deposit request
regarding fees & costs |
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PAYMENT |
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Prior to commencement of
representation, the attorney will quote the amount requested as a trust
deposit against which attorney's fees and costs may be billed. The
requested trust
deposit will be dependent upon the facts and
circumstances of your case.
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PRO client - no DV
criminal charges pending
* this shall not
constitute an offer, nor be construed as a binding estimate |
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Client authorization
is obtained
for any large cost expense. Final expenditure may run less or
client
may periodically be asked for additional amounts to be deposited to trust if
fees and costs will exceed previous deposits. |
Client
will be provided with a trust accounting and itemized
billing statement when there has been activity on the account. At the end of
each case, a detailed accounting summary is provided and
remaining trust proceeds are refunded. |
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trust
deposit for anticipated fees & costs is due when
retained |
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attorney does not accept installment payments |
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regular billings are
scheduled on the 1st and 15th
payment not received
as agreed = representation withdrawn |
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MAJOR
CREDIT CARDS ACCEPTED |
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COSTS
Out of pocket expenses (costs) are the responsibility of the client. |
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Generic
costs relevant to any litigation
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Generic costs
relevant to any criminal action
investigation & litigation of a domestic abuse restraining order is
similar to domestic violence criminal litigation |
| Generic
costs relevant to:
divorce
paternity |
PARTIAL LIST OF POTENTIAL
COSTS
out of pocket costs are the responsibility of the
client |
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link to Colorado
Judicial Branch website
current costs
information published by state |
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litigation costs
fluctuate - below estimates may be obsolete
fees & costs assessed by courts or third party
providers are not within attorney control |
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CAVEAT:
Not all above costs will be relevant to any given case, and additional
expenses not identified may be incurred in any individual case. Costs
quoted are subject to change by independent providers; actual costs paid will
be billed. limited
search
pricing |
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POTENTIAL
FEE QUOTE
DOMESTIC ABUSE
RESTRAINING ORDERS
DEFENDANT
REPRESENTATION |
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CURRENT CLIENT - DOMESTIC
VIOLENCE CRIMINAL CHARGES |
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Because the facts pertaining to the domestic abuse restraining order case are
intertwined with the domestic violence criminal charges, much of the
investigation and preparation is covered by the criminal case flat fee.
Therefore, in the domestic abuse restraining order case I offer only an hourly
fee structure; billable time pertaining to preparation for the actual
restraining order hearing or proceedings. Time expended determines fees. |
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PAYMENT |
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Prior to commencement of
representation, the attorney will quote the amount requested as a trust
deposit against which attorney's fees and costs may be billed. The
requested trust
deposit will be dependent upon the facts and
circumstances of your case. |
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PRO - domestic violence
criminal charge client
* this shall not
constitute an offer, nor be construed as a binding estimate |
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Client authorization
is obtained
for any large cost expense. Final expenditure may run less or
client
may periodically be asked for additional amounts to be deposited to trust if
fees and costs will exceed previous deposits. |
Client
will be provided with a trust accounting and itemized
billing statement when there has been activity on the account. At the end of
each case, a detailed accounting summary is provided and
remaining trust proceeds are refunded. |
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trust
deposit for anticipated fees & costs is due when
retained |
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attorney does not accept installment payments |
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regular billings are
scheduled on the 1st and 15th
payment not received
as agreed = representation withdrawn |
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MAJOR
CREDIT CARDS ACCEPTED |
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COSTS
refer to above plaintiff representation or
defendant representation - no criminal charges |
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GENERAL CONSIDERATIONS
DOMESTIC ABUSE RESTRAINING ORDERS
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In the event
of reconciliation and dismissal by client or opposing litigant, earned fees and expended costs will not be
refunded. Bear in mind when one party opens Pandora's Box, this may
trigger the other party filing for a reciprocal restraining order.
Domestic abuse litigation (even mere allegations) can have significant impact on
the ability to secure or maintain employment, as well as possession, ownership
or purchase of firearms - hunting. This type of litigation should not be
undertaken lightly or based upon anger or emotion - it is a means of last
resort. If after considering the above, you need assistance - please feel
free to
call or
email. |
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ANCILLARY CASES |
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If possession of real property is in issue, I would likely refer a client to a landlord - tenant attorney for a forcible
entry and detainer. Although as a rule I do not include general civil
matters in my practice, if requested by the client I would consider
representation in a replevin action or contract * equitable unjust enrichment *
partnership dissolution action upon an
hourly
fee structure. |
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POTENTIAL
FEE QUOTE
DOMESTIC ABUSE
RESTRAINING ORDERS
MODIFICATION OR
TERMINATION |
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I offer only an hourly fee structure - billable time pertaining to preparation
for PRO modification or termination proceedings. Time expended determines
fees. |
To
ascertain state court litigation history re PRO entry date & 4 year
eligibility status & procure statutorily mandated background check, refer to
background
search
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trust deposit request
regarding fees & costs |
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The
protected person must be served with a copy fo the motion
or modify or terminate.
Skip tracing conducted only if I am counsel of record
filing the motion to modify * terminate or for other
licensed attorneys - license will be verified. |
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PAYMENT |
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Prior to commencement of
representation, the attorney will quote the amount requested as a trust
deposit against which attorney's fees and costs may be billed. The
requested trust
deposit will be dependent upon the facts and
circumstances of your case. |
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motion
to modify or terminate PRO
* this shall not
constitute an offer, nor be construed as a binding estimate |
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Client authorization
is obtained
for any large cost expense. Final expenditure may run less or
client
may periodically be asked for additional amounts to be deposited to trust if
fees and costs will exceed previous deposits. |
Client
will be provided with a trust accounting and itemized
billing statement when there has been activity on the account. At the end of
each case, a detailed accounting summary is provided and
remaining trust proceeds are refunded. |
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trust
deposit for anticipated fees & costs is due when
retained |
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attorney does not accept installment payments |
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regular billings are
scheduled on the 1st and 15th
payment not received
as agreed = representation withdrawn |
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MAJOR
CREDIT CARDS ACCEPTED |
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COSTS
refer to above plaintiff representation or
defendant representation - no criminal charges |
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Cheer up. Life gets
better. 
Thank you for considering my
services; I appreciate your inquiry.
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ATTORNEY
REPRESENTATION
AND DECLINED MATTERS
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ALTERNATIVES |
FIND
A LAWYER |
if
you are seeking the below
please refer to above links for helpful information |
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sole practitioner
attorney does not accept these matters |
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a. a pro-bono (free) lawyer
b. an attorney who may take
lower fees - economic hardship
c. an attorney who may take installment payments |
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MID-LITIGATION
REPRESENTATION
alternatives and find a
lawyer links provided as a courtesy
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Attorney
Policies
Litigant Pro Se - Attempt to
Prepare or Defend Own Family Law Case |
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1.
Adequate Time. If sufficient time exists to adequately prepare your
restraining order case or
defense and if prospective client approves this
attorney's fees and costs structure, attorney will
likely accept representation. This shall
not constitute an offer of representation; attorney and
prospective client retain discretion through
first
consultation. |
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2.
Insufficient Time. If you've waited until the eleventh hour and there is not
sufficient time to adequately prepare your case or defense before a contested
court proceeding, please do not call. I decline. |
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3.
Limited Assistance.
Please do not call requesting instruction, directions, legal theory,
forms completion or limited document drafting, partial representation, or an explanation of
applicable law to assist you in preparation or defense of your own case. I decline. |
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Attorney
Policies
Representation
by Previous Attorney
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1.
Current Attorney.
Until an order has entered withdrawing representation by an
attorney, an ethical rule violation exists if counsel
knowingly speaks to another attorney's client without current
attorney's consent. This ethical rule governs all
attorneys. Please do not call until after
you have terminated representation by a former attorney.
PRO final orders hearings are set very close to the TRO date -
usually within 10 days from initial filing. After
other counsel's withdrawal it may take significant effort for the the new attorney to "catch up."
Please be aware fees and costs will be associated with procuring the court
file and coming up to speed in the case. |
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2.
Adequate Time.
If prospective client terminates employment of the
former attorney, if sufficient time exists to adequately prepare your
restraining order case or defense, and if prospective client approves this
attorney's fees and costs structure, attorney will
likely accept representation. This shall
not constitute an offer of representation; attorney and
prospective client retain discretion through
first
consultation. |
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3.
Insufficient Time.
If you've waited until the eleventh hour and there is
not sufficient time to adequately prepare your case or
defense before a contested court proceeding, please do
not call. I decline. |
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4.
Second Opinion.
I will not arm chair quarterback another
attorney's case preparation, trial tactics or theory of
the case. Please do not call for a second
opinion or an opinion regarding the competence
of preparation or defense in your current
restraining order case. I decline. |
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POST
DECREE MATTERS
alternatives and find a
lawyer links provided as a courtesy
former clients are naturally welcome to call anytime
regarding any legal matter |
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1.
Post PRO Contempt, Support, Property or Debt Enforcement. I accept most post
PRO requests
to
enforce
a prior court order with respect to child support,
spousal maintenance, property or debt or to enforce the
restraining order via contempt proceedings. This shall
not constitute an offer of representation; attorney and
prospective client retain discretion through
first
consultation. |
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2.
Post PRO Modification or
Termination. If the case qualifies statutorily, I will consider post PRO
modification or termination, however I do consider the amount of time elapsed
since last order, circumstances surrounding the termination and
number of prior attorneys retained by a prospective
client. This shall
not constitute an offer of representation; attorney and
prospective client retain discretion through
first
consultation. |
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3.
Appeals. I
do not accept appellate matters unless I provided
representation at hearing or trial and am familiar with the facts,
testimony and exhibits received into evidence, rulings and meritorious issues for appeal. That's been my policy for
years. Please do not
call or inquire regarding appellate matters if you are not a
former client. |
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ATTORNEY
TRADE AREA & TRAVEL
OUTSIDE EL PASO COUNTY
GEOGRAPHIC
DISTANCE
ECONOMIC CONSIDERATIONS |
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Colorado is a big state. Ease of internet access, email and toll free
phone doesn't change that fact. Due to need for trial preparation
and speed with which restraining orders cases come on for hearing,
travel beyond nearby counties is not feasible. |
| Trial preparation
time & travel cost considerations limit trade area. |
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Attorney is very willing to travel
outside the Colorado Springs area to present or defend a case,
but please be aware travel time, mileage and expense would
apply. If you are from out of state or are unfamiliar with
Colorado geography, refer to the map to determine where
Colorado Springs
is located in relation to the county of your court case or
hearing. |
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| COUNTIES |
CITIES / TOWNS |
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If travel is
necessary, a
trust deposit
would be required to cover anticipated travel time, mileage &
expenses. If it is not economically justifiable to retain
my services with travel, please contact counsel in the locale of
your case. |
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El Paso County |
Colorado Springs / Manitou
Springs / Fountain |
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Arapahoe County |
Littleton / Centennial /
Englewood |
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Douglas County |
Castle Rock |
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Elbert County |
Kiowa / Simla |
I welcome new cases. Intent is not to be harsh
or to discard potential new business, but to be practical. |
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Crowley County |
Ordway |
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Fremont County |
Canon City / Florence / Penrose |
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Pueblo County |
Pueblo |
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Teller County |
Cripple Creek / Woodland Park |
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Adobe
Acrobat Reader version 5 or later is required to view .pdf files 
Free Download
| please feel free
to call or email if you are a client or are seeking representation |
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FREE INITIAL CONSULTATION
not an offer for free legal advice - refer to link for terms
attorney is a sole practitioner with need to manage his caseload
attorney reserves the right to decline any legal matter |
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GUSTAFSON LAW OFFICE TOPICAL
WEBSITES |
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Topical Website Copyright © 2003
- All Rights Reserved - Document Revised
October 01, 2009
no copyright claimed to images other than photograph or law office logo
Topical Website Initial Publication Date: February 9, 2004 - Republication Date:
May 25, 2006
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Serving Colorado Springs
Area Zip Codes |
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Colorado Springs domestic abuse
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Springs domestic abuse, domestic abuse Colorado Springs, Colorado domestic
abuse, domestic abuse Colorado, Colorado Springs restraining orders, restraining
orders Colorado Springs, domestic abuse, domestic violence, temporary
restraining orders, TRO, permanent restraining orders, PRO, emergency protective
orders, EPO, restraining order, injunction, civil injunction, reciprocal
restraining orders, mutual restraining orders, restraining order dismissal,
violation of a restraining order, enforcement, defense, sanctions, penalties,
TESSA, safe house, counseling, therapy, CBI central registry, firearms purchase,
firearms possession, firearms ownership, ammunition possession, prohibition,
sealing records, sealing criminal justice records, attorneys fees.
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