Divorce at Altitude: A Podcast on Colorado Family Law

Domestic Violence and Child Custody in Divorce | Episode 53

September 13, 2021 Ryan Kalamaya & Amy Goscha Season 1 Episode 53
Divorce at Altitude: A Podcast on Colorado Family Law
Domestic Violence and Child Custody in Divorce | Episode 53
Show Notes Transcript

Ryan Kalamaya discusses how domestic violence issues can affect how the court determines child custody in divorce situations.

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.

Ryan Kalamaya (43s):
This episode is focused on domestic violence and how that can impact a Colorado custody or parenting dispute in Colorado related topics that you might want to check out because they frequently arise. And I'm assuming that you've already familiarized yourself with the issues would be the best interest of the children and what courts examine when they're looking at determining custody in a Colorado, the divorce, first of all, but then you also have these related issues that could be working in parallel processes. Now it would be in a criminal case or a civil protection order. So check out those other videos as well. But first under 14, 10, 1 24, which is again, the statute on the best sense of the children, the Colorado legislature has added provisions relating specifically to domestic violence.

Ryan Kalamaya (1m 32s):
That begs the question of what is domestic violence. Well, the Colorado legislature has defined domestic violence as an act of violence or a threat of active violence upon a person with whom the actor is or has been involved in an intimate relationship and may include any act or threatened act against the person or against property, including an animal. When used as a method of coercion control, punishment, intimidation, or revenge directed against the person with whom the actor is or has been involved in an intimate relationship. Now, when there isn't a claim of domestic violence that is alleged in a divorce, the court has to go through a multi-step process to determine whether or not this matters for the children.

Ryan Kalamaya (2m 15s):
The first thing you need to understand is that the standard of review in a divorce or a determination on custody is different than criminal. So in a divorce, it's a preponderance of the evidence that is different than beyond a reasonable doubt. The other thing you should understand is that there is a fifth amendment, right against self-incrimination. Remember those civics classes you took in middle or high school. Well, the fifth amendment essentially stands for the proposition that it can't be held against you for not testifying or not incriminating yourself. That is different than in a civil case. So if you assert your fifth amendment, right, or the other party asserts their fifth amendment, right? The divorce court or the court determining custody can hold it against you.

Ryan Kalamaya (2m 59s):
How else can domestic violence relate to parenting? Well, first it's going to matter whether there's going to be joint or sole decision-making in the legislature and the law. If the court determined by a preponderance of the evidence that a party has committed domestic violence, then the general presumption is that the court shall not order joint decision-making. Instead the court specifically has to find that there's credible evidence of the parties. Being able to make decisions cooperatively of the best interests of the child. Now, the rationale is that if there's been a domineering or coercive control relationship, then the party that is a victim, they're going to just go along with the dominant party.

Ryan Kalamaya (3m 44s):
Just be very by virtue of power on decisions when it may not be in the best interest of the child. And so the core is not going to put the victim in that case in a less powerful position. Similarly, the law also contemplates that the court shall not hold it against the party. If they've been absent or they've left the home because of acts of violence or threat of violence. So if a party fleas a house and they haven't been exercising parenting time, and it's due to a risk of a domestic violence, the court is not supposed to hold that against that party. In addition to decision-making does domestic violence when it's found by a preponderance of the evidence is related to parenting time and custody.

Ryan Kalamaya (4m 32s):
So what this looks like is the court then has to go through an analysis of whether or not an order that limits contact between the parties and minimizes unnecessary communication is necessary. So the court could order that the parties only communicate via email. And in addition could maybe order the parties only communicate through some designated software platform of communication, such as our family wizard, talking parents, civil communicator, the court would also consider whether an order that requires the exchange of children B occur in a protected setting or a public setting. There could be an order for supervised parenting time, and there could also be in a restriction on overnight parenting time.

Ryan Kalamaya (5m 15s):
All of these things are considered when a court finds by a preponderance of the evidence that domestic violence has occurred. There can be restrictions on alcohol and drugs during parenting time. And the rationale is that it's more likely that domestic violence is exacerbated. When substances such as alcohol come into play, there can also be a restriction or a specific provision on child support, and it can be made through the child support registry instead of interacting, or instead of directly between the parties, because it's going to require more communication. And there also might be disclosure of a person's address and where they may or may not be living. The court can order a domestic violence evaluation.

Ryan Kalamaya (5m 59s):
And this relates to criminal cases because that domestic violence evaluation is very similar. If not the same as what is required, when someone pleads guilty to a criminal offense involving domestic violence, likewise, the parties treatment of domestic violence and addressing ongoing safety concerns are going to be pretty similar in a criminal case involving domestic violence as would be the case in a divorce or a custody dispute in Colorado. Now, final note of domestic violence and parenting and a divorce. The core is really going to be concerned about the history involved between the parties is this pattern of coercive control over the past year, two years, five years, or is this one incident in which someone lost their cool because of the tension that gave rise to the divorce in the first place?

Ryan Kalamaya (6m 49s):
And if so, how serious, it's never going to be a justification for someone losing their cool and being charged with a crime. But on the other hand, there is a distinct difference between something that has been going on over the past year versus someone making a mistake over just one incident. And it you're going to be really be looking at what the judge is, how likely is this going to occur in the future? And how can we meet the best interest of the children giving consideration to both parties, being a parent versus the, you know, abuse and concerns over power and control. Thanks for listening or watching this short lesson on the divorce. ALS two podcast. If you found this helpful, please leave a review or share with a friend.

Ryan Kalamaya (7m 32s):
It does help for others that are going through or thinking about divorce in Colorado. If you want to find out more information, please visit kalamatas law or [email protected] 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 particulars of your case. We're happy to answer questions. Feel free to give us a call at nine seven three one five two three six five.