Courts take allegations of domestic violence in child custody cases very seriously, and if you’ve been accused, your ability to see your kids is at risk.
A domestic violence allegation is serious business.
Colorado has a mandatory arrest policy, which means that if you are accused of domestic violence — and the police can find probable cause — you will be arrested.
“Probable cause” is a lot less clear than you think.
The police use “five indicators” to determine if it is “probable” that domestic violence occurred. So, when the police arrive at the scene, they look for signs of intimidation, coercion, control, punishment, and revenge. If the police even suspect one of these things occurred, they are legally required to make an arrest.
The purpose of the mandatory arrest policy is to prevent domestic violence victims from further abuse. However, it’s very easy for a well played allegation to convince the cops something may have happened, which can easily lead to you being arrested. If the police even suspect something occurred, they would rather err on the side of caution than leave the scene and risk the situation escalating into something more serious.
It’s easier for the police to find a reason to make an arrest just to remove one of you from the home.
The bad thing is, if you are in the middle of a family law matter — or this will be the start of it — you are already placed in a position where you will be perceived as the parent who shouldn’t have custody.
Determining Child Custody in Colorado
The biggest question — and often the biggest argument — is who will take care of the children after you are separated.
In a perfect world, after a separation, both you and your spouse put the best interests of your child first and can work together towards a shared custody agreement that protects both of your rights, and ensures your child is able to see you both.
Unfortunately, that’s not how things work all of the time. When you and your spouse cannot come to an agreement, a judge will then decide, based on what the court views as the “best interest” factors.
In Colorado, custody is determined by a number of factors:
- the parents’ wishes;
- the child’ s wishes (if the child is mature);
- the child’s relationship with each parent, siblings and other significant people in the child’s life;
- the child’s adjustment to home, school and community;
- the mental and physical health of each parent and the child
- the ability of each parent to encourage the child’s relationship with the other parent;
- the physical distance between the parents’ homes;
- whether a parent has abused or neglected the child;
- whether a parent has abused the other parent;
- the ability of each parent to place the needs of the child ahead of his or her own needs, and
- any other facts the court considers relevant.
So, the big question that the court needs to answer — if both you and your spouse cannot agree — is who will be the primary parent, and how will parenting time be scheduled?
Challenges of Domestic Violence
If you are currently facing criminal charges for domestic violence while you are in the middle of a child custody case, you have an uphill battle, littered with challenges that will be very difficult to face alone and get a fair outcome.
Challenge #1: Even if you haven’t been convicted, the family judge still has to consider the arrest.
In a criminal proceeding, you have to be convicted beyond a reasonable doubt.
In civil procedure, you don’t. If your spouse or their attorney can make a reasonable argument and provide enough evidence to show that the incident likely happened, this will be used against you.
There are certain Colorado laws that basically prevent an abuser from having custody. If you cannot refute the other parent’s claims, you will not be able to get custody and you will likely have limited or supervised visitation until you complete the required domestic violence classes.
Challenge #2: If the charges were not dropped, you now have two court battles to fight.
On one hand, you will have criminal charges, which means you will either need to pay for a Colorado Springs domestic violence attorney or be represented by a public defender. On the other hand, you will be dealing with your custody hearing. This means paying for another lawyer. Representing yourself in a high-conflict custody situation is almost always a bad move.
Here is where things become even more complicated, stressful and costly…
You will need to present evidence and submit a response declaration for your family law matter. But, whatever evidence or testimony you submit (or is submitted by your spouse or their attorney) can be used against you in your criminal case.
Yet another issue is the fact that you will have two cases on the calendar, which means you will need to juggle scheduling two separate court matters. The order in which these hearings are scheduled should also be considered. An experienced family lawyer will have the knowledge to develop a strategy that gets you the best outcome possible.
Talk to a Colorado Springs Child Custody Lawyer
Child custody issues can be the most emotionally and psychologically draining life experiences anyone can deal with.
No matter what, you should NEVER sign any agreements unless you FULLY understand your rights under that order.
A contested divorce or high conflict custody matter can wreak havoc on your life, and every decision you make will have a lasting impact on the relationship you will have with your child. If you have been accused of domestic violence, talk to a Colorado Springs child custody lawyer today.