Avoiding Problems in Colorado Restraining Order Cases (part 1)

Judging by the number of restraining order cases, properly termed “protection orders,” the experienced Denver area family law attorneys at Plog & Stein, P.C. have seen in the last few months, our assessment is that summer 2013 has been problematic from the standpoint of people behaving in inappropriate and unsafe behaviors. In other words, we have seen an extraordinarily large number of protection order cases this summer.

After successfully wrapping up another protection order case a couple of weeks ago, it dawned on me that there are certain pitfalls which either side of a restraining order case can face. Those pitfalls can have not only lasting effects as relates to that protection order, but also potential lasting effects in a custody case, or divorce case with children. Realistically, many restraining order cases will ultimately tie into a divorce or custody case. Some temporary restraining orders are even issued at the outset of such cases.

For now, I will focus solely on the protection order aspect of things. The general process for a protection order is that, first, the complaining party, or victim, will go to the court, without the other side, and state his or her case to the judge or magistrate, setting forth the allegations of violence, threats of violence, stalking, or whatever the case may be. One aspect of this initial hearing is the person essentially having to indicate that he or she is concerned for his or her safety in an immediate sense, if the other party is not restrained. He or she will actually check a box on the standard state form indicating such. Presuming the court believes, based on the testimony of the complaining party, that grounds exist, a temporary restraining order will be issued. The complaining party will then have the other party served with the complaint, as well as the temporary restraining order. On that order will be a set date for the parties to return for an evidentiary hearing to determine whether the restraining order will be dismissed or made permanent.

With service of the Colorado restraining order, the defendant will also be served with specific notice indicating that violation of a protection order is a crime, punishable by time in jail, as well as potentially a fine. Violation of a protection order can also lead to the court potentially making the order permanent, or further contempt of court proceedings. If one is served with a temporary protection order, he or she must be certain to take seriously the warnings set forth in the paperwork.

When a client comes in, having been served with a protection order, our attorneys will always advise him or her of his or her rights, the court process, how to defend against the restraining order, etc. We also advise our clients very stringently that he or she violating the order will likely lead to serious criminal and other potential consequences. To avoid violations, there are a few simple rules:

1. You cannot call, e-mail, text, or try to have contact with the protected person, even through a third person. Doing so will be a criminal in nature and will lead to criminal charges pursuant to C.R.S. 18-6-803.5. We’ve seen it happen.

2. If the protected person tries to contact you, you are not to engage or respond. If they email or text you, you need to save proof of the communication attempt to use in court at the evidentiary hearing to come, but otherwise do not respond. If they call you, do not answer. They may leave a voicemail message, which you can also use. If they show up where you are walk away. Often times people believe that if the person trying to sustain the protection order contacts them that that person is violating the order. This is untrue. The restrained person is the one bound by the rules, not the party seeking the order.

3. If the protected party has also included the children in the protection order you cannot have contact with the kids, period. You can’t go to the kids school or to their soccer game. The same rules stated in number 2 will apply to your children. As much as it may break your heart to not answer their calls, or texts, and as much as you might get concerned that you will break their hearts, you have to resist. Your voilation of a restraining order related to your children could have lasting affects in that case, or any separate custody case that might arise.

As the person served with a restraining order, patience is key. One must keep in mind that his or her proverbial day in court will come. In most instances, restraining order cases must be heard within 14 days of the temporary order being issued. 14 days can seem like a lifetime, particularly as relates to your children. We recognize it is hard to be displaced from your home, family, and things. Patience and restraint are necessary and your attorney will ultimately help you through the process. Sadly, we do, from time to time, have people come to us who have violated the temporary protection orders issued against them. The court can consider this at hearing. Better to go to that hearing with a clean slate and to engage in behaviors that help your attorney help you when your day in court comes.

My next posting on this topic will deal with good and bad behaviors for the person who has sought the protection order, as relates to contact with the restrained party. Either side can make mistakes which can have lasting effects. Better to be armed with knowledge, and a good attorney.