Divorce at Altitude: A Podcast on Colorado Family Law

Civil Protection Orders in a Divorce | Episode 49

August 30, 2021 Ryan Kalamaya & Amy Goscha Season 1 Episode 49
Divorce at Altitude: A Podcast on Colorado Family Law
Civil Protection Orders in a Divorce | Episode 49
Show Notes Transcript

Ryan Kalamaya explains the two step process of obtaining a civil protection order motion in your divorce proceeding.

Step by Step Colorado Divorce Guide

The initial thought of trying to file for divorce can be overwhelming and emotionally exhausting. 

Ryan Kalamaya, one of the founding partners of innovative law firm Kalamaya | Goscha, has created a simple, step by step guide to the Colorado divorce process, so you know what to expect and how to best protect yourself and your assets.  

Each 5-minute episode will cover the process for divorce, parenting in a divorce, property division, and more. To watch the videos of each episode, click here.

About Kalamaya | Goscha

Kalamaya | Goscha is an innovative law firm with an award-winning team of trial lawyers specializing in highly personal disputes — divorce, child custody, property division, maintenance/alimony, pre-marital and marital agreements, and collaborative divorce — in Colorado. If you have additional questions or would like to speak to one of our attorneys, give us a call at 970-429-5784 or email us at [email protected].

Ryan Kalamaya (1s):
Welcome to divorce at altitude, a podcast on Colorado family law. I'm Ryan calamansi each week, along with my business partner and cohost Amy Gosha or an expert, we discuss a particular topic related divorce, or co-parenting in Colorado. In addition, we have created a short series of lessons that will take you through the legal process of divorce and answer your questions from simple to complex divorce. Isn't easy. The end of a marriage, especially when children are involved, brings a great deal of loss and change. We hope these practical tips and insights will help you on your journey to a new and better life Issue that frequently comes up in family law cases is domestic violence.

Ryan Kalamaya (47s):
Now I don't have enough time in this episode to address all the different kinds of domestic violence, nor the myriad of ways that domestic violence can impact a, a divorce. Instead, this episode is focused specifically on civil protection orders in subsequent episodes, I'll discuss the difference between criminal protection orders and civil protection orders, as well as how domestic violence can impact parenting time. But for now let's focus on civil protection orders. First, let's talk about the process to obtain a civil protection order. Pretty much any court in Colorado can issue a civil protection order. And that includes the divorce court.

Ryan Kalamaya (1m 27s):
Now complicating issues can arise when divorce is filed and outside of the divorce in a different jurisdiction, a civil protection order is issued. Nevertheless, the process by which a party can obtain a civil protection order remains the same. And it's essentially a two step process. First, a party will ask the court in the form of a verified motion and verified means that the party signs under penalty of perjury. Now that verified motion is filed with the court and it lays out why the person wants to obtain a protection order. Now, the standard by which a court reviews this verified motion, and it's usually that day, most courts will have some judge on call to review these motions because they are considered important.

Ryan Kalamaya (2m 16s):
And obviously time is of the essence. So it may be the divorce court judge is not the one that actually reviews the initial paperwork, but in any event, the judge reviews it and determines whether or not the person that is seeking protection is in imminent harm of danger. Now, the judge will issue if they do the order on an ex parte basis. That means that the person that is going to be restrained doesn't have an opportunity to defend themselves. And the, again, the issue is timing. And so the process takes into consideration. Things are moving very quickly, but on the other hand, their due process requires that the restrained version have the ability to defend themselves.

Ryan Kalamaya (2m 59s):
So the core and the process in Colorado is a balancing act. Now the core is going to look at whether or not the person's imminent harm. The statute in Colorado explicitly says that the court is not supposed to hold it against the complaining party, that if they waited, if they haven't called the police. And, but on the other hand, the court is supposed to consider whether or not the person's in imminent harm. Now, if the court grants, the temporary protection order or grants, the civil protection order, it will do so on a temporary basis. And again, we're getting into the balancing act between due process in the expediency that usually accompanies these kinds of situations. So the court will issue the temporary protection order and set a hearing.

Ryan Kalamaya (3m 42s):
And by law it's supposed to be within 14 days that temporary protection order needs to be served on the restrained party. And that can be either with a process server or someone like a sheriff who physically hands or serves the person that is going to be restrained in the interim, a violation of the civil protection order, which is at this point on a temporary basis would be a criminal offense. And in a divorce, it can also be the person can be held in contempt and they can go to jail and a whole bunch of other remedies. Now, the judge can also prohibit the restrained party from going to particular areas or can issue an order saying that the restrained party cannot go within a hundred yards of the protected party or go to their place of employment or to a marital house.

Ryan Kalamaya (4m 31s):
Now, if there is civil protection order in which someone is essentially prohibited from going to the marital residence, the restrained party is still going to have an opportunity to go to the house or their place of work and obtain their clothes, their toothbrush, the necessities, and that's done by a process called a civil standby. And that means that the restrained party goes to the house along with a sheriff or a police officer, to make sure that nothing, no other physical incidents or other things, any sort of conflict occurs when the person's getting their belongings. Now, the reason there are various grounds by which a person can obtain a civil protection order in Colorado that would include to prevent assault or threatened bodily harm to event domestic abuse, to prevent emotional abuse of the elderly or an at risk adult to prevent sexual assault or abuse and to prevent stocking other conduct bank qualify as grounds for a protection order.

Ryan Kalamaya (5m 29s):
Although the grounds I just went over are the most common. Now I mentioned a two-step process. The second step is that there will be a hearing by which the court will determine whether or not the temporary protection order should be made permanent. And again, we're getting into another two-prong approach at that hearing. And that is that the court first determines whether or not the acts complained of actually occurred. So it gets into the credibility and whether or not the incidence or the acts actually occurred. Now, I mentioned it's a two step process. And then the second step is a permanent protection order hearing at the hearing, which is supposed to occur within 14 days. But I will tell you, the courts really struggle, even though the law requires them to actually make that happen.

Ryan Kalamaya (6m 14s):
And that's because the courts are overburdened and they are supposed to make these issues a priority, but oftentimes the return date will be set for no more than 10 minutes. And that is at that point a second hearing. So what happens eventually when you get to a permanent protection order hearing? Well, the court is going to be looking at two primary things. One, the court is going to determine whether or not the acts or things that are complained of in the verified motion, all actually occurred. And so the party that is restrained has an opportunity to exonerate themselves and to bring in evidence also kind of make a side note that it's kind of the wild west in the terms of disclosure in the rules and the evidence by which the courts review these kinds of hearings.

Ryan Kalamaya (7m 2s):
There is no stated witness disclosure, deadline, or exhibits, and the rules of evidence apply in terms of hearsay. But generally our firm describes as the wild west, because both people come prepared and they may or may not have attorneys and they present their case in judges because of the expediency, but also balancing the due process are sometimes a little bit looser with the rules of evidence. Again, it depends on your jurisdiction and the issues involved, but in any event, the judge is going to determine whether or not they believe the things that were complained of happened. Then the judge is also charged with deciding whether or not these acts are going to continue, or there's going to be issues and less a permanent protection order is entered.

Ryan Kalamaya (7m 47s):
If the judge determines that the acts are not going to continue, the judge may say, listen, this is really bad, but I don't see this continuing. And therefore a permanent protection order is unnecessary. On the other hand, the judge may determine that there is no other way other than to enter a permanent protection order. Now, these permanent protection orders, they can have wide ranging implications. They can cause problems going in and out of the airport in security, they can implicate gun rights and other, a whole host of other issues. There's an appeal process. There is also a method by which a party that is permanent protection order is entered against, can ask for a review and to have it loosened up or withdrawn.

Ryan Kalamaya (8m 29s):
Now I mentioned violating a protection order if a permanent or temporary protection order is violated, it can be charged as a crime in and of itself. The other issues that typically arise with civil protection orders are children. And you can have a child who is subject to your restraining order, but oftentimes judges in a divorce are going to modify that in some respects. So the balancing act between the children and parenting as well as communication over parenting is something that is fairly nuanced and can really be dependent on the facts of your Case. Thanks for listening or watching this short lesson on the divorce altitude podcast.

Ryan Kalamaya (9m 10s):
If you found this helpful, please leave a review or share with a friend. It does help for others that are going through or thinking about a divorce in Colorado. If you want to find out more information, please visit kalamatas law or divorce, altitude.com. That's K a L a M a Y a.law. Remember, this is educational information. It's not intended to be legal advice. Please consult with an attorney about the particulars of your case. We're happy to answer questions. Feel free to give us a call at (970) 315-2365.