August 20, 2019

Colorado Court of Appeals: County Court Lacked Jurisdiction to Hear Habitual Domestic Violence Offender Case

The Colorado Court of Appeals issued its opinion in People v. Vigil on Wednesday, July 3, 2013.

Habitual Domestic Violence Offender—County Court—Felony.

Defendant challenged his convictions under the habitual domestic violence offender (HDVO) statute. The judgment was reversed and the case was remanded for further proceedings.

Defendant was charged in county court with misdemeanor counts in two separate cases, both arising from his conduct with his wife, the victim. Both cases went to trial in county court, and in each case, defendant was convicted of violating a protection order and the court found that his acts were an incident of domestic violence. The county court judge found that defendant was subject to HDVO sentencing.

Defendant contended that because he was charged with misdemeanor and felony counts pursuant to the HDVO statute, he was entitled to be tried in accordance with felony trial procedures, and the court’s failure to do so violated his statutory and constitutional rights. The HDVO statute is a sentence enhancement statute, not a substantive offense, which mandates a class 5 felony offense. The HDVO statute, as applied here, denied him critical constitutional and statutory protections required for felony convictions. Accordingly, defendant’s convictions were reversed and the case was remanded to the district court for a jury trial, should the People elect to pursue the prosecution.

Summary and full case available here.

Bills Regarding Crimes Against Pregnant Women, UCC Article 9 Security Interests, and Valuations of Real Property Signed

On June 5, 2013, Governor Hickenlooper signed 52 bills, the final bills of the 2013 legislative session. Any bills as yet not signed or vetoed by the governor 30 days after the last day of the legislative session, May 8, 2013, will become law.

Although there is not room here to summarize all of the bills signed on June 5, some of them are discussed below.

For a complete list of Governor Hickenlooper’s 2013 legislative decisions, click here.

SB 13-239: Prohibiting Certain Conflicts of Interest in the Provision of Probation or Case Management Oversight Services

On Tuesday, March 26, 2013, Sen. Jessie Ulibarri introduced SB 13-239 – Concerning Avoiding Potential Conflicts of Interest in the Provision of Services to a Person on Probation. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill clarifies that an entity that provides probation or case management oversight services to a defendant cannot also provide offender treatment, chemical dependency education and treatment, or domestic violence or mental health services to the same defendant or hold a financial interest in an entity that provides such education or treatment services to the same defendant. A private probation provider is prohibited from directing a probationer it supervises to a particular treatment provider.

If a person reasonably believes that a private probation provider violated either of these prohibitions, the person may file a complaint with the provider’s licensing authority. If the licensing authority finds a violation, it shall:

  • Issue a warning for a first violation;
  • Suspend the license for a second violation; and
  • Permanently revoke the license for a third violation.

The bill requires a court that sentences a defendant to probation to notify the defendant of these prohibitions and the remedy for a violation. The bill was introduced on March 26 and is assigned to the Judiciary Committee.

HB 13-1259: Making Several Amendments to Procedures for Civil Actions Involving Parental Rights and Responsibilities in Cases Involving Abuse and Neglect

On March 11, 2013, Rep. Beth McCann and Sen. Linda Newell introduced HB 13-1259 – Concerning Civil Actions, and, in Connection Therewith, Procedures for Allocating Parental Rights and Responsibilities in the Best Interests of the Child in Cases Involving Child Abuse and Neglect and Domestic Violence; Provisions Relating to Parenting Time Orders; Provisions Relating to Parenting Time Evaluations and Reports; and Amending and Relocating Provisions Relating to Civil Protection Orders. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill makes amendments to various provisions of law relating to civil actions and orders.

The bill amends provisions of article 10 of title 14, Colorado Revised Statutes (C.R.S.), as follows:

  • Includes additional rights of children with respect to the determination of parenting time in section 14-10-123.4, C.R.S.;
  • In the determination of the best interests of a child with respect to the allocation of parental rights and responsibilities pursuant to section 14-10-124, C.R.S.:
    • Requires a court to follow certain procedures in actions where a claim of child abuse or neglect or domestic violence has been made to the court or when the court has reason to believe that a party has committed child abuse or neglect or domestic violence;
    • In contested hearings on final orders, requires the court to make findings on the record concerning the factors the court considered and the reasons for the allocation of rights and responsibilities;
    • Permits the court to allocate mutual decision-making for a child in a case that involves domestic violence, over objections, if the court makes certain findings;
    • Requires the court to consider the current statutory factors concerning the best interests of the child in light of any finding of child abuse or neglect or domestic violence;
    • Includes certain factors that the court may consider when formulating or approving a parenting plan in cases where one of the parties has committed child abuse or neglect or domestic violence;
    • Permits the court to order a domestic violence evaluation and subsequent evaluations and to require a party to participate in domestic violence treatment; and
    • Includes general procedures that may be included in parenting plans;
  • Provides that a court is not required to order a parenting time evaluation pursuant to section 14-10-127, C.R.S., and includes a list of factors that the court shall consider in determining whether to order an evaluation; and
  • In section 14-10-129, C.R.S., expands language relating to domestic violence and increases the time within which the court must hear and rule on an emergency motion to restrict parenting time from 7 days to 14 days.

The bill amends, repeals, and relocates the provisions of part 1 of article 14 of title 13 relating to civil protection orders, as follows:

  • Moves the legislative declaration currently contained in section 13-14-102 (1), C.R.S., to a new section and adds additional language to the legislative declaration;
  • Amends section 13-14-101, C.R.S., containing definitions for article 14 to include a new definition for “contact” and “sexual assault or abuse,” and amends existing definitions for “domestic abuse,” “protection order,” and “stalking”;
  • Repeals section 14-13-102, C.R.S., and relocates provisions of that section, with amendments, to other sections in article 14;
  • Adds additional behaviors to the list of behaviors for which a court may enter an emergency protection order;
  • Repeals section 13-14-104, C.R.S., relating to foreign protection orders and relocates those provisions, with amendments, to the new section 13-14-110, C.R.S.;
  • Creates a new section 13-14-104.5, C.R.S., that includes provisions relating to temporary civil protection orders that are relocated from 13-14-102, C.R.S., with amendments, that:
    • Adds to the list of behaviors for which a temporary civil protection order may be entered;
    • Clarifies that a petitioner is not required to show that: he or she has reported the act that is the subject of the complaint to law enforcement, that charges have been filed, or that he or she is participating in the prosecution of the criminal matter; and
    • An order awarding temporary care and control of the child may be extended for not more than one year;
  • Creates a new section 13-14-105, C.R.S., that contains provisions that are relocated from section 13-14-102, C.R.S., with amendments, and adding additional provisions that a court may include as part of a civil protection order;
  • Creates a new section 13-14-106, C.R.S., that contains provisions that are relocated from section 13-14-102, C.R.S., with amendments, relating to procedures for permanent civil protection orders and clarifies that the court need not find that the petitioner is in imminent danger in order to grant a permanent civil protection order; and that the court may continue a temporary civil protection order and the show cause hearing for one year for good cause;
  • Creates a new section 13-14-107, C.R.S., that contains provisions that are relocated from section 13-14-102, C.R.S., with amendments, relating to enforcement of protection orders and duties of peace officers;
  • Creates a new section 13-14-108, C.R.S., that contains provisions that are relocated from section 13-14-102, C.R.S., with amendments, relating to the modification and termination of civil protection orders that:
    • Allows a restrained party to file for modification or dismissal of a permanent civil protection order 2 years after the order was entered or after the disposition of a prior motion; and
    • Permits the court to consider whether the protection order has been successful in preventing harm to the protected person as grounds to deny the modification or dismissal of a permanent civil protection order;
  • Creates a new section 13-14-109, C.R.S., that contains provisions that are relocated from section 13-14-102, C.R.S., with amendments, relating to civil protection orders fees and costs; and
  • Creates a new section 13-14-110, C.R.S., that contains provisions that are relocated from section 13-14-104, C.R.S., with amendments, relating to foreign protection orders.

At the request of the Family Law Section, the CBA Legislative Policy has voted to oppose the bill in its current form. On April 4, the Public Health Care & Human Services Committee amended the bill and sent it to the Appropriations Committee for consideration of the fiscal impact.

SB 13-197: Preventing Persons Who Were Subjects of Protection Orders to Prevent Domestic Violence from Possessing Firearms

On Wednesday, February 27, 2013, Sen.Evie Hudak introduced SB 13-197 – Concerning Preventing Persons Who Have Committed Domestic Violence from Possessing Firearms, and, in Connection Therewith, Making an Appropriation. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

When a court subjects a person to a protection order to prevent domestic violence or a protection order that prohibits the person from possessing or controlling firearms or other weapons, or the court convicts a person of a misdemeanor or felony domestic violence offense, the court:

  • Shall require the person to relinquish any firearm or ammunition in the person’s immediate possession or control or subject to the person’s immediate possession or control; and
  • May require that before the person is released from custody on bond, the person shall relinquish any firearm or ammunition in the person’s immediate possession or control or subject to the person’s immediate possession or control.

In the case of a person who is served in court with a protection order to prevent domestic violence, and in the case of a person who is served with a mandatory protection order prohibiting the person from possessing or controlling firearms or other weapons, the person must relinquish any firearm or ammunition within 24 hours. In the case of a person who is served outside of the court with a protection order to prevent domestic violence, the person must relinquish any firearm or ammunition within 48 hours. However, a court may allow a person up to 72 hours to comply if the person demonstrates to the satisfaction of the court that he or she is unable to comply within 24 or 48 hours, as applicable.

To satisfy the requirement, the person may:

  • Sell or transfer possession of the firearm or ammunition to a federally licensed firearms dealer;
  • Arrange for the storage of the firearm or ammunition by a law enforcement agency; or
  • Sell or transfer the firearm or ammunition to a private party; except that the person shall not transfer a firearm or ammunition to a private party unless the private party has been approved to possess or purchase a firearm pursuant to a background check of the national instant criminal background check system.

If a person is unable to satisfy the requirement because he or she is incarcerated or otherwise held in the custody of a law enforcement agency, the court shall require the person to relinquish any firearm or ammunition in the person’s immediate possession or control or subject to the person’s immediate possession or control not more than 24 hours after the person’s release from such incarceration or custody or be held in contempt of court. The court, in its discretion, may require the person to relinquish any firearm or ammunition in the person’s immediate possession or control or subject to the person’s immediate possession or control before the end of the person’s incarceration.

If a person sells or otherwise transfers a firearm or ammunition to a private party, the person shall acquire:

  • From the transferee, a written receipt acknowledging the transfer, which receipt shall be dated and signed by the person and the transferee; and
  • From the licensed gun dealer who requests from the Colorado bureau of investigation a background check of the transferee, a written statement of the results of the background check.

If a local law enforcement agency elects to store firearms or ammunition for a person:

  • The agency may charge a fee for such storage, the amount of which shall not exceed the direct and indirect costs incurred by the agency in providing such storage; and
  • The agency may establish policies for disposal of abandoned or stolen firearms or ammunition.

A federally licensed firearms dealer who takes possession of a firearm or ammunition, and a law enforcement agency that stores a firearm or ammunition, shall issue a receipt to the person who transfers possession of the firearm or ammunition. Not more than 3 calendar days after relinquishing the firearm or ammunition, the person shall file a copy of the receipt with the court as proof of the relinquishment. A person who fails to timely file a receipt commits a class 2 misdemeanor.

A person subject to a protection order who possesses or attempts to purchase or receive a firearm or ammunition while the protection order is in effect violates the protection order.

The bill passed out of the Senate on March 11; it is assigned to the Judiciary Committee in the House.

Domestic Violence Awareness Month: Should Sole-Parent Decision-Making Really Be the Last Resort?

As an attorney, Child and Family Investigator, and parenting coordinator/decision-maker, I frequently find myself struggling with our parental decision-making paradigm.  Unlike parenting time, decision-making can only go three ways:  joint/shared decision-making, split decision-making, and sole decision-making.  Yet, these three options are fraught with philosophical and practical implications under the best of circumstances.  They are even more problematic where domestic violence exists in the relationship between the parents.

There is a presumption among family law practitioners that shared decision-making is the ideal.  The predominant belief is that excluding a parent from major decisions in a child’s life is tantamount to excluding a parent from the child’s life entirely.  When it come to cases regarding their children, one parent acts with the assumption that the other parent must be made an enemy in order to make themselves appear as a model parent.  Demanding sole decision-making becomes the weapon of choice, intended to punish and hurt the other parent.

Shared decision-making presumes that what is best for children is that both parents participate equally in all major decisions.  (I’ll leave a discussion of what a major decision actually is for another day, but for now let’s assume we are truly talking about major decisions regarding education, extra-curricular activities, health care, or religious upbringing.)  The reality, however, is that for most parents who are no longer living together, this is a recipe for disaster.  There are, of course, former couples that are able to maintain a civilized relationship and focus on the children, but they are not the couples that we all see in our offices on a daily basis.  Frankly, if this worked so well, we wouldn’t have a need for the roles of parenting coordinator and decision-maker.

The average person leaves a relationship angry, bitter, and convinced that his or her former partner is the worst parent imaginable.  If there is domestic violence in the relationship, shared decision-making becomes a means for the abuser to continue to exercise power and control over the victim, to manipulate the victim and the system, and to ultimately abuse the child.  This is why C.R.S. § 14-10-124(1.5)(b)(V) specifically states, albeit weakly, that shared decision-making should not be awarded in cases of domestic violence.

Split decision-making, on the surface, looks like a fine alternative in those cases where couples simply cannot make joint decisions.  Dividing the responsibility prevents the need for couples to cooperate.  This could mean that one parent makes educational and health decisions while the other makes religious and extra-curricular decisions.  Like shared decision-making, this works for some.

But, consider the myriad intersections between areas of decision-making:  school and religion (especially for those children in parochial schools); extra-curricular activities and educational activities; healthcare and religion for some; and on and on.  If someone wishes to constrain the other parent’s or the child’s choices, split decision-making is ripe for that sort of abuse.  For example, the parent with extracurricular decision-making might decide the child is to participate in weekly karate classes, while the other parent is forced to take the child to those classes across town at an inconvenient time.  It is a perfect storm for one parent to exercise power and control over the other and the child.

This leaves us with sole decision-making, which is frowned upon except in the most egregious circumstances.  As I mentioned above, taking away a parent’s decision-making authority is viewed as second-class parent status.  This is for people who have supervised visits and limited contact, right?

But should it be?

The Supreme Court has told us that parents have a constitutional right to the care for and have control of their children; so restricting that right must have a basis in substantial facts.  Must this option really be reserved for only the worst of the worst?  Isn’t it possible that it is in the children’s best interest far more often than we are willing to acknowledge?

Sole decision-making is supposed to be presumed in cases of domestic violence, for obvious reasons.  But what often happens instead is that abusers argue they are not abusive and victims equivocate to avoid the conflict and abuse, only to end up with a decision-making order that perpetuates the dynamics of the relationship and further expands the children’s role as pawns.

I’ve spent a lot of time pondering these three options, and particularly their implications in cases of domestic violence.  I am left wishing for better choices that will ensure the best interests of children.  I’m left wondering if we, as attorneys, should reconsider our position on sole decision-making.  I am also left pondering how attorneys can better assess for domestic violence and better support victims.  During the month of October, Domestic Violence Awareness Month, I challenge you to give these questions some thought as well.

For those interested in exploring this topic further, there are a couple of excellent resources available:

The Civil Law Manual: Protection Orders and Family Law Cases (Rebecca Henry, Esq., ed., American Bar Association 3rd ed. 2007).  Available at: http://apps.americanbar.org/abastore/index.cfm?section=main&fm=Product.AddToCart&pid=3480008

Wallerstein, Lewis and Blakeslee, The Unexpected Legacy of Divorce: A 25 Year Landmark Study (Hyperion 2000).

Click here for more information about Domestic Violence Awareness Month.

Jennifer Eyl is an Attorney and Licensed Professional Counselor who has been working with victims of sexual and domestic violence since 1994. Jennifer currently serves as a court-appointed Child and Family Investigator and Parenting Coordinator/Decision-Maker. She is co-chair of the Colorado Bar Association’s Domestic Violence and Legal Issues Committee, a member of the Colorado Coalition Against Domestic Violence’s Public Policy Committee and Subcommittee on Domestic Violence and Domestic Relations, and is the chair of the Colorado Coalition Against Sexual Assault’s Public Policy Committee.

Domestic Violence Awareness Month: Serve Your Clients Better by Screening Them for Domestic Violence Issues

October is Domestic Violence Awareness Month. Are you aware of whether domestic violence affects your clients?

You may be asking yourself, “Why should I be?” Let me endeavor to convince you.

I have witnessed the prevalence of domestic violence and have seen how it intersects with almost every practice area in the law. After laboring on the problem of domestic violence for twelve years, in both a legal advocacy and a public policy capacity, I still marvel at the complexity of the matter and the myriad of other issues with which it traverses. But, that is not just my own professional reality. Given that 1 in 4 women will experience domestic violence in her lifetime, and given that domestic violence impinges on people from all walks of life, chances are good that some of your clients are, or have been, in abusive relationships.

It is vital that you screen your clients for domestic violence. Here’s why:

Shame, self-blame, fear, embarrassment, thinking it is irrelevant to the legal advice she is seeking, or not identifying herself as a victim of domestic violence – these are all very valid reasons why a survivor may not disclose abuse to you. Survivors have limited occasions within which to disclose abuse safely and confidentially. Telling an attorney whose communications with her are privileged is one such opening. If you don’t ask questions to uncover potential abuse, you may miss a significant opportunity to provide life-saving referrals to local community resources and to reinforce that the abuse is not her fault, not to mention enhance your legal representation.

For reasons of efficacious and ethical representation, and to avoid the “M” word (malpractice, of course), it is critical to know whether your client is a survivor, and to consider how the context of domestic violence impacts your legal strategizing and advice. A complete picture of the risks and an understanding of the needs arising from your client’s experience are necessary in order to best represent them and to avoid the unintentional harm that can result from uninformed representation.

Of equal importance are safety considerations: your client’s and yours. There are many steps you can take to help increase the safety of survivor clients who continue to be at risk and to manage your own potential risks. The first step is being aware of the domestic violence and whether your client’s physical safety is an ongoing concern. However, risk management and enhanced safety for survivors is far more complicated than seeking solutions to address physical safety alone. For example, without economic security there can be no safety for survivors. With an understanding of the financial risks a survivor client is facing, you are in a position to increase your client’s safety and personal agency by weaving economic justice tactics throughout your legal strategizing and representation.

This Domestic Violence Awareness Month I am advocating for several things. Include domestic violence screening as a standard part of your intake process. Take the time to become familiar with local resources. Learn how to safety plan with your client and for yourself. And become aware of available legal remedies to domestic violence. All are essential for follow-up when domestic violence is disclosed. The tools to get you started are out there, such as this one from the American Bar Association’s Commission on Domestic Violence.

So, I ask you: Why not take action this October (and beyond)?

Amy Miller is the Public Policy Director at the Colorado Coalition Against Domestic Violence. Visit their website for further information and resources or join the discussion on their Facebook page. Amy can be reached at amiller@ccadv.org.