Colorado And False Allegations Of Domestic Violence – The Impact On Child Custody “Parenting Time” Issues

By H. Michael Steinberg – Colorado Domestic Violence Criminal Defense Lawyer – Attorney

Colorado And False Allegations Of Domestic Violence – The Impact On Child Custody “Parenting Time” Issues – In Colorado false allegations of domestic violence and or child abuse in the context of divorce – child custody determinations are all too common. This article addresses some of the issues that those falsely accused should understand.

In Colorado False Allegations Of Domestic Violence Begins With Collecting the “Evidence”

Setting up a case for false allegations of domestic violence begins with the alleged “victim” collecting the “evidence” that she will use to persuade the police that she was attacked.

If your wife, husband, boy, or girlfriend is seen starting to collect “evidence” of alleged domestic violence – be aware that criminal charges may follow soon.

Such collected evidence of alleged “physical abuse” might be:

- - Pictures you have of bruises or other injuries…dated if possible.
  - Torn or bloody articles of clothing.
  - Any household objects allegedly damaged during the “violent episode.”
  - Pics of the home or apartment messed up after “it” happened.
  - Records from ER room or family doctor visits that document some of “the abuse”
  - Notes or journals that contain”facts” about the allegations of domestic violence in the alleged victim’s own words.

How Allegations Of Domestic Violece In Colorado Can Affect “Parental Responsibility” – (Custody) Determinations

Colorado law uses the term “parental responsibilities” instead of “child custody.” The term is used to designate the rights and responsibilities of a parent to care for his/her child.

The determination of parental responsibilities – known as the “allocation of parental responsibilities“, includes decisions about how much parenting time each parent will be awarded with the child and which parent, of course, gets to make those decisions.

This is a weighty determination, as the parent who has responsibility for decision-making decides the child’s upbringing, his or her education, health care, and even religious training. A judge allocates the decision-making responsibility to both parents (jointly) or to one parent (individually) and the decision is based on the “best interests of the child.” The judge takes in such important factors as the physical, mental, and emotional conditions and needs of the child. C.R.S. § 14-10-124(1.5)

The Colorado Parental Responsibilities Court Order

Without a controversy – under Colorado law, both parents have equal and indistinct rights and responsibilities towards their child(ren). BUT, the way an angry or jealous spouse or significant other can change that equation is to seek a court order (by filing a motion with the Court) to change that basic rule and to re-allocate parental responsibilities.

A parent seeking such a “reallocation” can get a judge to give the accusing parent:

• responsibility to make decisions about education, healthcare, religion and other things for your child;

• the right to decide where the child will live and when the child will be given time with the other parent;

• when and how the child will be transferred to the other parent, if at all.

• an order preventing moving the child.

• the right to call the police or to otherwise go back to court to enforce the order and to hold the other parent in “contempt” if the other parent does not follow the court order.

The False Allegation And The Request For “Supervised” Parenting Time

One of the ways the “accusing parent” has to control the time the other as regards their mutual child is to ask that a judge order “supervised parenting time.” Such requests typically emerge out of allegations of domestic violence or some form of child abuse. Supervised parenting time means that you must suffer the humiliation of seeing your child in the presence of a “neutral third party” such as a professional supervisor or another family member.

The Impact Of False Allegations Of Domestic Violence – Child Custody – And Allocations Of Parental Responsibility

Where there have been any allegations of domestic abuse between you and the other parent, or allegations of drug or alcohol abuse, or of the alleged inability to protect the child from some kind of “immediate danger” or abuse, a motion to re-allocate parental responsibility and – or – order “supervised parenting time is often filed.

Colorado And False Allegations Of Domestic Violence – The Impact On Child Custody “Parenting Time” Issues – Important Terms

- - - Legal custody means the responsibility for making major decisions for the children’s welfare.
    - Physical custody means that the children spend most of the time with that parent.
    - Parental responsibilities are the sum of all the duties and responsibilities parents have to their children, including decision-making ability and parenting time.
    - Decision-making ability is the responsibility to make decisions in a specific area for the children.
    - Parenting time means the actual time the children spend with one or the other parent.

For A Parent – There Is No More Important Time Than Parenting Time

As stated – in making the determination of Parenting Time – that is – when you actually get to be with your child(ren) a judge focuses on the “best interests of the child.” Having said that, here are the factors the judge will use:

1. 1. 1. wishes of the parents;
    2. wishes of the child;
    3. child’s interactions and relationships with the parents, brothers, sisters and others important to the child;
    4. child’s adjustment to home, school, and community;
    5. mental and physical health of all individuals involved;
    6. ability of the parents to encourage the sharing of love, affection, and contact between the child and the other parent;
    7. whether the past pattern of parental involvement with the child reflects a system of values, time commitment, and mutual support;
    8. physical distance between the parents;
    9. whether one of the parents has been a perpetrator of child abuse, child neglect, or spouse abuse;
    10. ability of each parent to place the needs of the child ahead of his/her own needs.

For A Parent The Second Most Important Right Is The Allocation of Decision-making Responsibility

Here the “best interests of the child’ standard falls to these factors:

1. 1. 1. ability of the parents to cooperate and to make decisions jointly;
    2. whether there is a past pattern of parental involvement with the child and whether it indicates an ability as mutual decision-makers to provide a positive and nourishing relationship with the child;
    3. whether an allocation of mutual decision-making will promote more frequent or continuing
    4. contact between the child and each parent;
    5. whether one of the parents has been a perpetrator of child abuse, child neglect, or spouse abuse.

What Happens When There Are False Allegations Of Domestic Violence Or Child Abuse?

All allegations of domestic violence or child abuse fall into one of three categories:

I. They are true,

II. They are untrue but the other sincerely believes they are true

III. They are untrue and are made maliciously.

This article addresses only Type III allegations

Once there is an allegation of abuse – the analysis turns to the type of abuse alleged.

The types of evidence that are most often used in family law cases are:

Reports, such as police, child protective services, parenting time – decision-making or custody evaluations

Guardian Ad Litem reports

Any medical evidence

Blood, urine or breathalyzer test results

A therapist’s report

A psychiatric evaluation

Other professional evaluations

If allegations of abuse are NOT supported by credible evidence, they are rejected by both criminal and civil courts. However, and here’s the issue, just the making of the allegation under the ” best interests of the child” standard is enough to change everything.

The very definition of child abuse is any act or failure to act by a parent that harms a child physically or emotionally.

Furthermore even an allegation that one parent has been abusive to the other parent, after application of the “best interests of the child” standard – directly impacts a judge’s decision as regards joint decision-making or joint custody. Shared decision making is now impossible because of the possible issue of the potential for a physical confrontation and in a place and manner which poses a danger to the abused spouse or the child.

Transferring Children From One Parent To The Other

If there is an allegation of domestic violence – even the transfer the children from one home to the other home becomes problematic and real parenting time is impacted.

After an allegation of domestic violence in criminal court – the “victim” parent topically files a notice with the court objecting to the other parent having parenting time, as now, even where there is a false allegation of domestic violence, the child is “endangered.”

The court, where there is a criminal allegation, will consider the criminal record of the parent as well as the nature of the allegations of abuse. It is critical, at this juncture, to establish the frivolous, groundless, or vexatious nature of the allegations and to protect the precious allocation of parenting time of the falsely accued parent.

Allegations of domestic abuse between you and the other parent makes working out parenting time difficult if not impossible. Furthermore, Colorado’s legal definition of domestic violence can range from verbal abuse, (shouting, yelling, or name calling) to actual violence such as pushing, shoving, hitting, slapping, or even punching; to the ever elusive “emotional abuse” such as behavior that makes the other parent ” feel afraid” make it difficult for a judge to even permit the accused parent ANY parenting time.

How Is The Allegation Of Domestic Violence Used By The Accuser In Child Custody Matters ?

1. Colorado Law and False Allegations of Fear for the Child’s Safety

So called victims of domestic violence, use the notion that their children “are not safe” with the other parent as a result of an alleged domestic violence incident. This tactic to obtain more – if not exclusive – parenting time or to try to reduce or increase child support, or to try in any other ways to gain control the other parent – is not only very common, it is expected in some quarters.

The effect of making false allegations of domestic violence and then raising “concerns” about the safety of the children, not only antagonizes the other parent – now also targeted by the criminal justice system – it is intended to destroy the other parent in the eyes of the child and can have that impact.

That is the reason to fight the criminal charges with every breath in your body. It is obvious that judges in family law court have an overwhelming duty to keep the children in their charge safe. They will always side with the safety of the children, therefore stopping a false allegation in it’s tracks is not only important for a myriad of reasons unrelated to your child – (employment, jail, probation, etc) it may permanently effect your relationship with your child if a judge takes steps to separate you from them.

2. Colorado Law and False Allegations of Drug and/or Alcohol Abuse

Another allegation I see often in criminal cases, is the charge that the defendant abuses drugs or alcohol. Judge’s order UA’s or BA’s and even SCRAM units on the allegation alone.

There are two ways to view this – as an intrusion on your rights – (which it is) – and or – as an opportunity to establish the falsity of the allegation by continuous “clean” test results. The worst case scenario – are “hot” or diluted test results which tend to confirm the allegations in the eyes of the court.

3. Colorado Law and False Allegations of Sexual or Physical Abuse

Finally there is an allegation of sexual abuse, physical abuse or neglect. These charges are not only investigated by law enforcement – the intrusive entry of the Department of Human Services (CPS) into your life follows. If social services finds any evidence to support the charges – there may follow an action known as a Dependency and Neglect (D&N) action.

The Conclusion

You must confront and resolve domestic violence and child abuse allegations head on, efficiently and pro- actively. The pain of losing the respect of your child as the accused parent is indescribable and should not be tolerated. An excellent family law lawyer and an experienced criminal defense lawyer can advise you how to defend against the false allegations brought against you.

Colorado And False Allegations Of Domestic Violence – The Impact On Child Custody “Parenting Time” Issues

ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author – A Denver Colorado Domestic Violence Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-227-7777.

If you are charged with A Colorado crime or you have questions about Colorado And False Allegations Of Domestic Violence – The Impact On Child Custody “Parenting Time” Issues, please call our office. The Law Offices of H. Michael Steinberg, in Denver, Colorado, provide criminal defense clients with effective, efficient, intelligent and strong legal advocacy. We can educate you and help you navigate the stressful and complex legal process related to your criminal defense issue.

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