Domestic Violence and Custody

Posted By Jorgensen, Brownell & Pepin, P.C.

24 Jun. 2016

The Courts and legislature take domestic violence very seriously. In 2013, the legislature expanded the definition of domestic violence as it pertains to domestic issues of protection orders, parenting time, and decision-making responsibilities. The expanded definition of domestic abuse includes physical threats of violence and harm, mental and emotional abuse, financial control, document control, property control, and other types of control that make a victim more likely to return to an abuser out of fear of retaliation or an inability to meet basic needs.

When it comes to parenting time and decision-making responsibilities, Courts make determinations in regards to the best interest of the child. In addition to the factors listed in C.R.S. 14-10-124, if there is a claim of child abuse or neglect or domestic violence, the Court must determine whether one of the parties has committed an act of domestic violence, has engaged in a pattern of abuse, or has a history of domestic violence.

If the Court finds that there is evidence that one of the parties has committed domestic violence, the Court can fashion parenting time and decision-making orders to protect the victim and child from additional harm. For example, if the Court find there is domestic abuse between the parties the Court can limit the communication between the parties, or order that any exchange of the children take place in a public place or supervised location. In instances where the Courts find the child is at risk of abuse, the Courts can also order the abusive parent only have supervised visitation with a child.

The Courts give significant weight to domestic violence on custody cases for a number of reasons. For the victim spouse or party, the legislature recognizes the abuse does not always end with the divorce or with the separation. Batterers may use the court system to perpetuate abuse, and the victims’ ability to parent may be affected. Courts want to limit the danger to the victims of domestic violence from ongoing abuse. As a result, keeping the victim of the domestic abuse safe, often keeps the child safe.

Judges have also been trained to look at how domestic violence between the parents affects the children in a divorce or custody proceeding. One study that the Colorado Courts rely on heavily is the Adverse Childhood Experiences Study (ACE Study). Approximately 17,000 individuals participated in the study, which looked at how a traumatic or stressful experience during childhood affected adult health. The study asked participants about ten different types of childhood trauma: physical abuse, sexual abuse, emotional abuse, physical neglect, emotional neglect, mother treated violently, household substance abuse, household mental illness, parental separation or divorce, and an incarcerated household member.

The study found that that Adverse Childhood Experiences (ACEs) were common, and often occur together. 63% of the participants had experienced at least one category of childhood trauma, and over 20% experienced three or more categories of childhood trauma. Children exposed to many ACEs may be overloaded with stress hormones, which can leave them in a constant state of fight-or-flight. They may be less focused on school, are more likely to experience academic failures and behavioral problems, and may have trouble trusting teachers or other adults. Children are more likely to develop new fears, be anxious, and experience depression or bouts of aggression.

Even considering domestic violence as a factor, the Courts generally still believe that it is the best interest of a child to have parenting time with both parents, and must still look at the total of the factors enumerated in C.R.S. §14-10-124. Consequently, although the court may impose rules or structure on the parenting time, it is highly unlikely that parenting time would be significantly restricted or denied all together.

More information about the ACE Study can be found at: www.acestudy.org

The full text for the Best Interest Factors under C.R. S. 14-10-124 can be found at: C.R.S. 14-10-124

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