Frequently Asked Colorado Restraining Order Questions Part 1
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- What is the procedure for getting a permanent restraining order?
In Colorado, the procedures for seeking a restraining order are similar from court to court. Restraining orders can be sought in both your divorce case, in a separate “county court” action, or in a municipal court. As Colorado divorce and custody attorneys, we generally handle domestic relations cases at the district court level. Restraining orders are the one type of case in which we will also go to county court.
In either court, the first step is filing a complaint for a protection order. This is done by filling out a complaint form, including other required forms, and filing it with the clerk of the court. The clerk of the court will then transmit the paperwork to the appropriate courtroom for a judge or magistrate to review.
Restraining orders are given priority on the docket, and you will go before a judge the same day you file. Once filed, the party seeking the protection order will be sent up to the judge’s courtroom to briefly state why he or she feels a restraining order is needed.
Presuming the judge finds merit to the allegations, a temporary restraining order will be issued. The temporary order will indicate a return hearing date on it, which will occur, by statute, within 14 days of issuance of the temporary order. The restrained person must then be personally served with the complaint and temporary protection order. The purpose of the return hearing date is to conduct an evidentiary hearing to determine whether the temporary protection order should be made permanent. The hearing to get the initial, temporary protection order, is conducted “ex-parte”, meaning without the other party present. People can usually, effectively get through the first hearing without an attorney. The second hearing is the one in which both sides are most likely to need an attorney, as statute and rules of evidence apply.
- Can I include my children on my restraining order against my husband?
Pursuant to statute, a court in a restraining order case has the authority to enter temporary “care and control” provisions for children in the temporary protection order. Courts generally recognize that though children may not be the direct victim of domestic violence, they may be subjected to it, nonetheless, whether by witnessing acts between the parents, hearing threats, or otherwise. “Care and control” provisions are different from seeking a permanent protection order on behalf of a child, which can also be done.
When the court issues orders regarding care and control of the children in the temporary restraining order, the issues of temporary custody, visitation, etc. will be heard at the permanent restraining order hearing. It is not uncommon for the attorneys at Plog & Stein to see a restraining order hearing in a divorce case turn into, essentially, a hearing regarding custody of the children. Care and control provisions generally only run for 120 days. As such, it is important for either party to proceed with a correlating divorce or custody case in a timely fashion, as long-term orders regarding custody will need to be sought. This is presuming that the temporary restraining order is not initially issued in a divorce or custody case.
Any orders regarding care and control of the children will terminate once new visitation or custody orders are entered in the divorce or custody case. Courts will generally not issue a permanent protection order with the children listed as “protected” persons, unless they have been the direct, or actual, victims of abuse or violence. This is because permanent restraining orders cannot be modified, generally, for four years.
- What are the grounds for seeking a restraining order?
C.R.S. 13-14-102 (1.5) sets for the specific grounds for issuance of a restraining order. Specifically, statute indicates that restraining orders can be issued to: a) prevent assaults and threatened bodily harm; b) prevent domestic abuse; c) prevent emotional abuse of the elderly or of an at-risk adult; d) prevent stalking. Though “domestic abuse” can take many forms, such as emotional or verbal abuse, the term is strictly construed in a restraining order case to relate to violence or threats of violence.
“Stalking” is defined by criminal statute C.R.S. 18-9-111(4). For purposes of seeking a temporary protection order, the court will need to find that the person to be protected is in “imminent,” or immediate, danger of suffering one of the above enumerated abuses. At the hearing to determine whether a permanent restraining order shall be issued, the court must find that the restrained party has committed one of the above enumerated acts and that, unless restrained, will continue to do so. Therefore, one should never assume that making a temporary protection order permanent is simple. The process can be laden with technicalities and the outcome can be determined by the detail of the facts present to the court, mapped up with the specific statutory language.
- What happens if my ex-wife violates the restraining order I have against her?
The Denver family law attorneys at Plog & Stein take domestic violence very seriously. Over the years, we have seen horrific instances of domestic abuse and control, which have lasting ramifications on the victims, as well as the children. Restraining orders are put into place to protect people. Yet, like any other court order, they can be violated.
First and foremost, if you are the protected person in a restraining order case, you should immediately call the police if you are in fear for your physical safety, or that of your children. Violations of protection orders can be dealt with both civilly and criminally. One can bring a contempt of court action directly in the case in which the restraining order was sought. Violation of a protection order is also a criminal offense, which can bring a jail sentence of up to 18 months.
A protected person may choose how he or she wants to proceed in terms of dealing with violations. Though there are many factors to be considered, safety should be number one. Police will generally respond on an immediate basis when they know there is a protection order in place and the restrained person is attempting physical contact. The restrained person is fully aware of the criminal nature of a violation, as there is a warning set forth on every protection order.