Family Law and Juvenile Delinquency - October 2008
| Publication year | 2008 |
| Pages | 61 |
2008, October, Pg. 61. Family Law and Juvenile Delinquency - October 2008
October 2008
Vol. 37, No. 10 [Page 61]
About the Author
Kevin Sidel provides alternate dispute resolution services, including mediation, arbitration, special master, and retired judge-(303) 646-3422, sideladr@earthlink.net. He previously was a County Court Judge and District Court Magistrate in the Eighteenth Judicial District.
Parents' roles in delinquency proceedings depend, in part, on court orders concerning parental responsibilities. This article provides a summary of the interplay between family law and delinquency and is intended to highlight the issues and concerns that may need to be addressed by lawyers, the court, and parents.
Every stage of juvenile delinquency proceedings requires parental involvement and parental responsibility, from first contact with law enforcement to sentencing. For married biological or adoptive parents, either parent may participate interchangeably in delinquency proceedings with their minor child. For divorced or never-married parents of a child in the delinquency system, court orders regarding parental responsibilities-decision making and parenting time-must be considered on a case-by-case basis. Existing orders will determine, for example, which parent may or must attend a hearing with the juvenile, which parent may sign documents with and for the juvenile, which parent may be held liable along with the child for damages and restitution, and which parent may or should supervise the juvenile during and after proceedings have concluded.
This article generally summarizes issues related to juvenile delinquency proceedings involving children in the family law system. It discusses issues with which family law professionals must be familiar, such as the definition of "parent," the impact and interplay of an allocation of parental responsibilities in a family law case on juvenile delinquency proceedings, and the effect of temporary orders and civil protection orders.
Definition of "Parent"
Delinquency proceedings in Colorado are governed by the Colorado Children's Code (Title 19). Relevant definitions are located at CRS §§ 19-1-103 and 19-2-103, including the following two definitions:
"Parent" means either a natural parent of a child, as may be established pursuant to article 4 of this title, or a parent by adoption.(fn1)
"Parent," as used in sections 19-1-114, 19-2-514, and 19-2-515, includes a natural parent having sole or joint custody, regardless of whether the parent is designated as the primary residential custodian, or a parent allocated parental responsibilities with respect to a child, or an adoptive parent. For the purposes of section 19-1-114, "parent" does not include a person whose parental rights have been terminated pursuant to the provisions of this title or the parent of an emancipated minor.(fn2)
Under the first, broader definition, all natural or adoptive parents generally are treated similarly in delinquency proceedings, regardless of court orders concerning parenting time, decision making, or custody orders.(fn3) Under the narrower definition at CRS § 19-1-103(82)(b), a parent is defined as one with "sole or joint custody" or "parental responsibilities." This definition is applied specifically to CRS § 19-1-114 (Orders of Protection); CRS § 19-2-514 (Summons); and CRS § 19-2-515 (Contempt).
As defined in Colorado's Uniform Dissolution of Marriage Act, CRS §§ 14-10-101 et seq., the phrase "parental responsibilities" includes both parenting time and decision making.(fn4) Because the Children's Code definitions do not draw a distinction between a parent awarded parenting time parental responsibility and a parent awarded decision-making parental responsibility, family law orders and definitions must be considered in delinquency cases. Parents with an existing allocation of parental responsibilities for a child charged with a delinquent act must understand which definition of parent applies and under which statute the court is proceeding, because a single hearing in a delinquency matter may permit or require involvement by a parent for one purpose but not another.
Court Orders and Decision Making and Parental Responsibilities
In a dissolution of marriage or action for allocation of parental responsibilities (APR), the court "shall determine the allocation of parental responsibilities, including parenting time and decision-making responsibilities, in accordance with the best interests of the child. . . ."(fn5) For any particular issue, decision making can be joint to both parties or sole to either party.(fn6)
There is no Colorado case law addressing parents' roles in delinquency proceedings following allocation of parental responsibilities. As further discussed below, when parents have been granted joint decision-making authority, either parent may appear and make decisions with and for the child, if both parents agree to the course of action in the delinquency proceeding. In a situation where one parent has been granted sole decision-making authority, the role of the parent without decision-making authority may be more limited. Sometimes, a contentious scenario may develop when parties with joint decision-making authority disagree about the course of their child's delinquency matter.
The role of the parents when one party is granted sole decision-making authority is set forth at CRS § 14-10-130(1):
Except as otherwise agreed by the parties in writing at the time of the decree concerning the allocation of parental responsibilities with respect to a child, the person or persons with responsibility for decision-making may determine the child's upbringing, including his or her education, health care, and religious training, unless the court, after hearing and upon motion by the other party, finds that, in the absence of a specific limitation of the person's or persons' decision-making authority, the child's physical health would be endangered or the child's emotional development significantly impaired.
The phrase "the person or persons with responsibility for decision-making may determine the child's upbringing" provides guidance that may be applied to delinquency proceedings. Given the lack of cases directly on point, analogous rulings may be helpful.
For example, in Montoya v. Bebensee,(fn7) following a divorce, mother was awarded custody of the parties' minor children and father was awarded liberal visitation. Father later filed a lawsuit on behalf of his children against a psychologist. The Court of Appeals, citing CRS § 14-10-130(1), upheld the trial court's dismissal of father's complaint, finding that
father, the non-custodial parent, lacked capacity to act as next friend for the children, and the trial court did not err in dismissing the claims brought by him on their behalf.(fn8)
Delinquency proceedings raise issues of due process, deprivation of freedom, and imposition of fines and restitution. Thus, Montoya suggests that only a parent granted decision-making authority may participate meaningfully in decisions in the delinquency process.
Delinquency Proceedings During a Pending Dissolution Action
When a child enters the juvenile justice system during an active dissolution of marriage proceeding, temporary orders concerning parental responsibilities issued pursuant to CRS §§ 14-10-108(1) and -125 must be considered...
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