By Katy Ellis - Family Law Attorney with The Harris Law Firm
On May 14, 2013, the Governor signed House Bill 13-1259, which incorporates additional language regarding domestic violence, child abuse, and neglect into existing statutes. The bill officially recognizes the right of children to be free from domestic violence, child abuse, and neglect and their right to be emotionally, mentally, and physically safe when in a parent’s care. Although the bill modifies many statutes, some of the changes are particularly significant and should be noted by family law practitioners.
One significant change involves the approach that courts must take when determining the best interests of a child. Under the previous version of C.R.S. § 14-10-124, two of the many factors to be considered in determining the best interests of a child were any history or incidents of domestic violence or child abuse. The new bill requires courts to examine those two factors first and provides additional guidelines for the court’s analysis. Although still affording trial courts significant discretion, the tone of the statute suggests that the legislature wants courts to be more aggressive in limiting parenting time if a parent has committed acts of domestic violence or child abuse. The new bill also clarifies that a court may not consider a party’s acts to protect a child from witnessing or experiencing domestic violence or abuse when it determines that party’s ability to encourage the relationship between the child and the other party.
One other significant change is not directly related to the domestic violence or child abuse issues. The Bill now requires greater specificity in parenting plans, including detailed procedures for parenting time exchanges and communications between the parents. This should be a marked improvement from the existing “form” parenting plan. Absent specificity, parents often found themselves back in court trying to determine when exactly parenting time begins and ends and to define the beginning and end of a particular holiday. As family law practitioners are aware, there can be great divergence across counties and between individual parents regarding the answers to those questions.
One of the most significant changes involves the legislature’s modification of C.R.S. § 14-10-129, concerning emergency motions to restrict parenting time. Under the previous statute, if a parent files an emergency motion to restrict the other parent’s parenting time; the other parent may only exercise supervised parenting time until the court has a hearing on the emergency motion to restrict. Under the previous statute, the court was obligated to conduct a hearing within seven days of the filing of the motion. The short turn-around for the hearing helped protect the other party from unreasonable interference with parenting time and minimize the disruption for the minor children. Under the modified statute, the court now has fourteen days to conduct a hearing on the emergency motion. Although this expansion is likely designed to accommodate the realities of many counties’ dockets, it may also result in additional infringements on parenting rights in high-conflict cases.
On a related note, the new bill modifies the statute regarding civil protection orders and, as part of that modification, increases the jurisdiction of the protection order court to award temporary care and control of any minor children of either party for a period of up to one year. The previous version of the bill only allowed temporary custody orders for a six-month period. This change is likely also a reaction to the increasingly overwhelmed dockets in some Colorado counties. The benefit of the change is that parties who begin their case with a protection order hearing will not be stuck in limbo while they wait for a temporary orders hearing in their dissolution of marriage or allocation of parental responsibilities case. One possible downside is that having a one-year order in place may provide an additional incentive for the domestic relations courts to delay scheduling a temporary orders hearing. On a practical note, the hearings in protection orders cases typically involve less evidence and testimony regarding the best interests of the children than temporary orders hearings in domestic relations courts. Allowing a protection order court to enter orders for up to one year may have significant ramifications for the children involved in these cases.
The new bill includes many changes to statutes that family law practitioners routinely utilize, including several changes not included in this brief summary. Anyone practicing in this area should read the new bill with care.