During many Divorce cases, one party or the other may have the need to file for a Civil Protection Order. These are commonly referred to as "Restraining Orders." Although all the details described herein are specific to the state of Colorado, restraining orders are somewhat standard throughout the country. Consult your attorney or feel free to contact us for assistance.

In Colorado, the law states that restraining orders are governed by C.R.S. Section 13-14-102. When a judge has the power to grant a restraining, it is for the following purposes:

1. To prevent assaults and threatened bodily harm;

2. To prevent Domestic Violence;

3. To prevent emotional abuse of the elderly or of an at risk adult;

4. To prevent stalking.

Throughout the country, normally the proper county or venue for the filing of a restraining order is where the acts occur that result in the complaint.

The first step that must be taken, when a party wishes to obtain a restraining order, is for that party to go to the courthouse and seek a "Temporary Civil Protection Order." This requires the party to be placed under oath and swear that the facts which serve as the basis for the restraining order are true and correct. The judge must find that imminent danger exists to the life or health of one or more persons, and as stated in the law, "the court shall consider when the most recent incident of abuse or threat of harm occurred as well as other relevant evidence concerning the safety and protection of the person(s) seeking the protection order."

A pattern of ongoing and continual harm, or the likelihood of harm to the person seeking protection is required.When one party has been arrested for a Domestic Violence criminal charge, the District Attorney will most likely seek to prove that the offending party had a history of committing domestic abuse against one or more persons. If a party violates the terms and conditions of a restraining order, the commission of said offense is a crime (Colorado Law).

All too often "false allegations" are made by one parent against the other when children are involved in divorce proceedings. Since evidence of domestic abuse or violence is relevant, there must exist proof of a real threat of harm to the safety of the other spouse, not just bare allegations. In many divorce cases, one spouse makes Domestic Violence allegations against the other, and seeks a restraining order for the sole purposes of manipulating the system in an attempt to blackmail the other party or parent, particularly when custody is at stake. As an example, I represented a client who's spouse filed a restraining order in which that spouse alleged that the party was being violent and abusive and made threats in that party's attempt to win custody of the three children. I went to court and as a result of a hearing before a judge, we established that there was insufficient evidence to prove the allegations and the permanent restraining order was denied. It is very important for any lawyer representing a party in a divorce case to know the entire history of any allegations, proved or not, which are material to the issue of whether a restraining order is proper or not.

Where there are children involved in a divorce matter, and a parent has obtained a restraining order against the other parent, the court will consider whether an order needs to be entered that awards temporary care and control of the children, for a period of not more than 120 days. This is why it is extremely important, to have the judge in the divorce action make certain rulings as to the best interests of the children and whether depriving the children of contact with a parent is well founded. A competent Divorce Attorney who represents a client who has a restraining order entered against that client, can effectively take action to prove to the court that the children are not in imminent danger or request that the court order an investigation by an independent expert. On the other hand, acts of Domestic Violence which gave rise to the entry of a Permanent Restraining Order, is an extremely serious matter in determining the best interests of the children and can be utilized to limit a parent's contact with the children or even make such contact, "supervised."

Valid and documented Domestic Violence allegations will significantly affect the orders entered in a divorce case. A judge will not be inclined to expose children to possible harm, if it has been established that there exists a history of Domestic Violence or that a Permanent Restraining Order has been entered. In most states it is the court's discretion to fully protect the best interests of the minor children.

If any party or parent in an ongoing divorce matter believes that he or she has been threatened or that such threats expose the children to harm, it is vital to call 911 and at the earliest possible date, obtain a restraining order. An experienced Family Law attorney should be hired to fully protect either party's rights, whether for the purpose of aggressively pursuing valid domestic violence allegations or defending a party against fabricated unsubstantiated claims.

By: Gordon Shayne
In a career as an attorney that has spanned over 21 years, Gordon N. Shayne has a broad background concentrating in litigation or trial work. He is a licensed attorney in the State of Colorado, State of Florida, United States District Courts in Colorado and Florida, a member of the Trial Bar in the United States District Court for the Southern District of Florida, and the 5th and 11th Circuit Court of Appeals. He is a member in good standing of the Colorado and Florida Bar Association, the National Association of Criminal Defense Lawyers, and the El Paso County, Colorado Bar Association. He practices law in Colorado Springs, CO as well as in surrounding areas and is available at http://www.colorado-springs-attorney.com.

Featured by Resources For Attorneys, a legal resources and lifestyle information portal.

For more law articles see Legal Articles.

Need a laugh, visit Lawyer Jokes from Resources For Attorneys.

Comments: For those of you that would like to comment on this or any other post in this blog, go to the Contact me link on the upper right hand side of this page and send your comment via that link. If your comment is on topic, and even fairly well written, we will post it with the article. If you have a site that you would like to be linked to your comment please supply it and we will include that link.