Dissolution of Marriage and Domestic Violence: Considerations for the Family Law Practitioner - October 2008
| Publication year | 2008 |
| Pages | 43 |
2008, October, Pg. 43. Dissolution of Marriage and Domestic Violence: Considerations for the Family Law Practitioner - October 2008
October 2008
Vol. 37, No. 10 [Page 43]
Representing a parent in a dissolution of marriage action can be a complicated undertaking-especially if that parent faces criminal charges for domestic violence. This article addresses considerations for the family law practitioner who is representing the defendant-parent in family court.
When a parent is charged with domestic violence and is involved in a dissolution of marriage action in which parental responsibilities are contested, the attorney representing the defendant-parent in family court faces unique challenges. Family law practitioners must be prepared to deal with these challenges, which often begin with a 911 call and an ensuing police report in which allegations are made, and may continue through sentencing.
This article provides general information that can assist the family law practitioner in protecting the defendant-parent's rights in family court.(fn1) Specifically, it discusses bond considerations, including the mandatory protection order issued in all domestic violence cases; motions to modify parenting time and parental responsibilities; and discovery and plea bargain considerations. The article is intended to provide basic information and does not address all pitfalls or scenarios the practitioner may encounter.
Bond Considerations and Mandatory Protection Orders
A person taken into custody is entitled to an amount of bail, to be fixed by the judge, to secure his or her release pending resolution of the criminal charge.(fn2) The amount, type, and conditions of bond are set by the judge the first time the defendant appears. Bond-setting occurs for two primary reasons: (1) to ensure the defendant returns to court to respond to the charges; and (2) to protect the victim and the public pending resolution of the charges.(fn3) It is in connection with the latter that additional conditions of bond may be imposed.(fn4) Conditions of bond often include prohibitions against consuming alcohol and possessing weapons, and submission of the defendant to supervision.
The issuance of a mandatory protection order pursuant to CRS § 18-1-1001 always accompanies a domestic violence charge. Any mandatory protection order entered in conjunction with a criminal charge issues when the defendant first appears before the court, and continues "until final disposition of the action."(fn5) The order restrains the defendant from harassing, molesting, intimidating, retaliating against, or tampering with any witness to or victim of the acts charged.(fn6) In cases involving allegations of domestic violence, the mandatory protection order includes:
1) a stipulation that the defendant vacate or stay away from the home of the victim and from any other location the victim is likely to be found;
2) a stipulation that the defendant refrain from contacting or communicating with the victim, either directly or indirectly; and
3) any other order the court deems appropriate to protect the safety of the victim.(fn7)
When children are either named as victims of the criminal act or witness to the offense, they will be included as persons the defendant is restricted from contacting.(fn8)
Modifications to Mandatory Protection Orders
Occasionally, a district court will issue a protection order involving parenting time in a dissolution of marriage action based on the same factual allegations as in the criminal case. Conflicts arise when the county court in connection with the criminal matter issues a protection order that also addresses or affects the defendant-parent's contact with his or her children and is inconsistent with the district court order. When the children are not named as victims of the alleged criminal offense and the protection order in the criminal case does not...
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