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By Colorado Criminal Defense Lawyer – H. Michael Steinberg
In order to fully understand how to defend an attempt by an individual – let’s say a former spouse, significant other or angry neighbor – from obtaining what could be a life changing Colorado Permanent Restraining Oder against you – you start with a close analysis of the law itself.
What follows is an analysis of Colorado’s actual civil restraining order law – and a close = paragraph by paragraph description of the method of the introduction of evidence and the burden of proof – sometimes called the burden of persuasion – on the person bringing the restraining order petition – the “petitioner.”
Most states refer to restraining orders involving crimes against persons as “protection orders.” The FBI maintains a protection order file of civil and criminal orders involving domestic violence and stalking in order to assist in interstate enforcement and insta-check gun background check.
In the civil restraining/protection order and criminal contexts, the focus is on specific acts of violence.
Here is the ANALYSIS OF THE COLORADO CIVIL RESTRAINING ORDER LAW
(1) (a) The general assembly hereby finds that the issuance and enforcement of protection orders are of paramount importance in the state of Colorado because protection orders promote safety, reduce violence, and prevent serious harm and death. In order to improve the public’s access to protection orders and to assure careful judicial consideration of requests and effective law enforcement, there shall be two processes for obtaining protection orders within the state of Colorado, a simplified civil process and a mandatory criminal process.
HMS: This Web page article addresses the civil protection order.
HMS: Here (¶ 1(a) – in the legislative declaration - there is a message to the judge – that the Colorado State Legislature FAVORS the issuance of these orders. This is an outgrowth of the one size fits all mentality and knee jerk legislation that typifies state legislation. The message here – and below is – “we favor these orders and we want to make it easy to get them.”
(b) The general assembly further finds and declares that:
(I) Domestic violence is not limited to physical threats of violence and harm but includes financial control, document control, property control, and other types of control that make a victim more likely to return to an abuser due to fear of retaliation or inability to meet basic needs;
(II) Victims of domestic violence in many cases are unable to access resources to seek lasting safety options;
(III) These victims need the assistance of additional court orders to meet their immediate needs for food, shelter, transportation, medical care, and child care at the time they go to court for a civil protection order; and
(IV) These additional court orders are needed not only in cases that end in dissolution of marriage but also in cases in which reconciliation is appropriate, as well as in other cases.
(1.5) Any municipal court of record, if authorized by the municipal governing body; any county court; and any district, probate, or juvenile court shall have original concurrent jurisdiction to issue a temporary or permanent civil protection order against an adult or against a juvenile who is ten years of age or older for any of the following purposes:
(a) To prevent assaults and threatened bodily harm;
(b) To prevent domestic abuse;
(c) To prevent emotional abuse of the elderly or of an at-risk adult;
(d) To prevent stalking.
HMS: Section (¶1.5)– The preceding paragraph permits even the “lowest” courts in Colorado -municipal or city courts – the jurisdiction to issues temporary and permanent restraining orders. This is a key provision – it provides the REASONS FOR THE ISSUANCE OF A RESTRAINING ORDER and it limits the issuance of restraining orders to the prevention of these things and only these things. The list is exclusive.
(2) Any civil protection order issued pursuant to this section shall be issued using the standardized set of forms developed by the state court administrator pursuant to section 13-1-136.
(2.5) Venue for filing a motion or complaint pursuant to this section is proper in any county where the acts that are the subject of the motion or complaint occur, in any county where one of the parties resides, or in any county where one of the parties is employed. This requirement for venue does not prohibit the change of venue to any other county appropriate under applicable law.
HMS: Section (¶2.5) Here – the term venue means – where the case can be filed – it is a broad list and can include where either party resides, is employed or where any act occurs.
(3) A motion for a temporary civil protection order shall be set for hearing, which hearing may be ex parte, at the earliest possible time and shall take precedence over all matters, except those matters of the same character that have been on the court docket for a longer period of time. The court shall hear all such motions as expeditiously as possible.
HMS: Section (¶ 3) This statute provides petitions for a restraining order with a priority over other cases on the court docket… again the state legislature bowing to the will of a powerful female lobby.
(3.3) Any district court, in an action commenced under the “Uniform Dissolution of Marriage Act”, article 10 of title 14, C.R.S., shall have authority to issue temporary and permanent protection orders pursuant to the provisions of subsection (1.5) of this section. Such protection order may be as a part of a motion for a protection order accompanied by an affidavit filed in an action brought under article 10 of title 14, C.R.S. Either party may request the court to issue a protection order consistent with any other provision of this article.
HMS: Section (¶ 3.3) This statute provides that in a DIVORCE ACTION the judge can utilize the procedures in this law as a part of the orders in the divorce proceeding – you usually see this at the time the divorce is filed.
(3.7) At the time a protection order is requested pursuant to this section, the court shall inquire about, and the requesting party and such party’s attorney shall have an independent duty to disclose, knowledge such party and such party’s attorney may have concerning the existence of any prior protection or restraining order of any court addressing in whole or in part the subject matter of the requested protection order. In the event there are conflicting restraining or protection orders, the court shall consider, as its first priority, issues of public safety. An order that prevents assaults, threats of assault, or other bodily harm shall be given precedence over an order that deals with the disposition of property or other tangible assets. Every effort shall be made by judicial officers to clarify conflicting orders.
(4) (a) A temporary civil protection order may be issued if the issuing judge or magistrate finds that an imminent danger exists to the person or persons seeking protection under the civil protection order. In determining whether an imminent danger exists to the life or health of one or more persons, the court shall consider when the most recent incident of abuse or threat of harm occurred as well as all other relevant evidence concerning the safety and protection of the persons seeking the protection order. However, the court shall not deny a petitioner the relief requested solely because of a lapse of time between an act of abuse or threat of harm and filing of the petition for a protection order.
(b) [Business Based Protection Orders:] If the judge or magistrate finds that an imminent danger exists to the employees of a business entity, he or she may issue a civil protection order in the name of the business for the protection of the employees. An employer shall not be liable for failing to obtain a civil protection order in the name of the business for the protection of the employees and patrons.
The worst feature of the restraining order law is that it allows a person to go to court and get an order, without the other person present. That means that the petitioner may tell the court anything since there is no cross examination and there is no one is there to rebut it. As a consequence, without any input in the matter, a person can lose their children, their home, their money, their guns, and their freedom.
What more can be said? Any liar can get an order by merely asserting fear. The only hope is to stop it at the return hearing. That is the hearing that deals specifically with whether the judge will make the temporary restraining order permanent.
(5) Upon the filing of a complaint duly verified, alleging that the defendant has committed acts that would constitute grounds for a civil protection order, any judge or magistrate, after hearing the evidence and being fully satisfied therein that sufficient cause exists, may issue a temporary civil protection order to prevent the actions complained of and a citation directed to the defendant commanding the defendant to appear before the court at a specific time and date and to show cause, if any, why said temporary civil protection order should not be made permanent. In addition, the court may order any other relief that the court deems appropriate. Complaints may be filed by persons seeking protection for themselves or for others as provided in section 26-3.1-102 (1) (b) and (1) (c), C.R.S.
(6) A copy of the complaint together with a copy of the temporary civil protection order and a copy of the citation shall be served upon the defendant and upon the person to be protected, if the complaint was filed by another person, in accordance with the rules for service of process as provided in rule 304 of the rules of county court civil procedure or rule 4 of the Colorado rules of civil procedure. The citation shall inform the defendant that, if the defendant fails to appear in court in accordance with the terms of the citation, a bench warrant may be issued for the arrest of the defendant and the temporary protection order previously entered by the court shall be made permanent without further notice or service upon the defendant.
Many people do not realize how important this hearing is. Once it is held, usually for a very short time, the order is rigidly set in stone for life. Courts do not adequately warn defendants of the vast consequences of this hearing. Things happen very – very quickly.
(7) The return date of the citation shall be set not more than fourteen days after the issuance of the temporary civil protection order and citation. If the petitioner is unable to serve the defendant in that period, the court shall extend the temporary protection order previously issued, continue the show of cause hearing, and issue an alias citation stating the date and time to which the hearing is continued. The petitioner may thereafter request, and the court may grant, additional continuances as needed if the petitioner has still been unable to serve the defendant.
(8) (a) [ The Civil Assist ] Any person against whom a temporary protection order is issued pursuant to this section, which temporary protection order excludes such person from a shared residence, shall be permitted to return to such shared residence one time to obtain sufficient undisputed personal effects as are necessary for such person to maintain a normal standard of living during any period prior to a hearing concerning such order. Such person against whom a temporary protection order is issued shall be permitted to return to such shared residence only if such person is accompanied at all times while the person is at or in such shared residence by a peace officer.
HMS: Section (¶ 8 (a) and (b and c) This provision permits the person bound by the Temporary Restraining Order to return – briefly – to retrieve SOME personal belongings ONLY if the restrained person is accompanied by a PEACE OFFICER – a police officer.
(b) When any person is served with a temporary protection order issued against such person excluding such person from a shared residence, such temporary protection order shall contain a notification in writing to such person of such person’s ability to return to such shared residence pursuant to paragraph (a) of this subsection (8). Such written notification shall be in bold print and conspicuously placed in such temporary protection order. No judge, magistrate, or other judicial officer shall issue a temporary protection order that does not comply with this subsection (8).
(c) Any person against whom a temporary protection order is issued pursuant to this section, which temporary protection order excludes such person from a shared residence, shall be entitled to avail himself or herself of the forcible entry and detainer remedies available pursuant to article 40 of this title. However, such person shall not be entitled to return to the residence until such time as a valid writ of restitution is executed, filed with the court issuing the protection order, and, if necessary, the protection order is modified accordingly. A landlord whose lessee has been excluded from a residence pursuant to the terms of a protection order is also entitled to avail himself or herself of the remedies available pursuant to article 40 of this title.
HMS: When the court issues an ex parte order that results in a Temporary Restraining Order, it sets up another hearing in two weeks, with notice to the defendant – which must be personally served on him, where he can come with an attorney or to argue his case on his own. This is called a “return” day.
If there was ever a time to get a lawyer, this is it.
Do not believe that if the Petitioner lies – the DA will charge the person with perjury. DAs will almost never prosecute perjury.
(9) (a) On the return date of the citation, or on the day to which the hearing has been continued, the judge or magistrate:….
HMS: Here is a line by line analysis of the law governing the Permanent Restraining Order Hearing,
HMS – “SHALL EXAMINE THE RECORD AND THE EVIDENCE. If upon such examination the judge or magistrate is of the opinion that the DEFENDANT HAS COMMITTED ACTS CONSTITUTING GROUNDS FOR ISSUANCE OF A CIVIL PROTECTION ORDER
that UNLESS RESTRAINED WILL CONTINUE TO COMMIT SUCH ACTS, the judge or magistrate shall order the temporary civil protection order to be made permanent or order a permanent civil protection order with different provisions from the temporary civil protection order.
HMS: This is the key – two level analysis
FIRST – LEVEL I – Q:has the Defendant actually committed the acts complained of?
SECOND – LEVEL II – Q: Unless restrained – the Defendant will continue to commit these acts
The judge or magistrate shall inform said defendant that a violation of the civil protection order shall constitute a criminal offense pursuant to section 18-6-803.5, C.R.S., or shall constitute contempt of court and subject the defendant to such punishment as may be provided by law. If the defendant fails to appear before the court for the show cause hearing at the time and on the date identified in the citation issued by the court and the court finds that the defendant was properly served with the temporary protection order and such citation, it shall not be necessary to re-serve the defendant to make the protection order permanent. However, if the court modifies the protection order on the motion of the protected party, the modified protection order shall be served upon the defendant.
HMS: Good Cause – Four Month Status Quo Continuance: the following paragraph provides for up to a 120 day continuance of the status quo – the temporary restraining order – if the parties agree – this is sometimes a good idea to allow the parties to cool off and for calmer heads to prevail. It makes sense at times but requires both sides to agree.
(b Notwithstanding the provisions of paragraph (a) of this subsection (9), the judge or magistrate, after examining the record and the evidence, for good cause shown, may continue the temporary protection order and the show cause hearing to a date certain not to exceed one hundred twenty days after the date of the hearing if he or she determines such continuance would be in the best interests of the parties and if both parties are present at the hearing and agree to the continuance. …
HMS: The following provision provides – for good cause shown – and even if one side objects – to a brief continuance for up to 14 days – usually to obtain an attorney or to better prepare for the hearing given the short notice given between the temporary order and the final or return hearing
In addition, each party may request one continuance for a period not to exceed fourteen days which the judge or magistrate, after examining the record and the evidence, may grant upon a finding of good cause. The judge or magistrate shall inform the defendant that a violation of the temporary civil protection order shall constitute a criminal offense pursuant to section 18-6-803.5, C.R.S., or shall constitute contempt of court and subject the defendant to such punishment as may be provided by law.
HMS: The following provision allows the lower court to defer to the Divorce Court on the issue of the continuance of the temporary restraining orders – “on the motion of either party if both parties agree.”
(c) Notwithstanding the provisions of paragraph (b) of this subsection (9), for a protection order filed in a proceeding commenced under the “Uniform Dissolution of Marriage Act”, article 10 of title 14, C.R.S., the court may, on the motion of either party if both parties agree to the continuance, continue the temporary protection order until the time of the final decree or final disposition of the action.
(10) The court shall electronically transfer into the central registry of protection orders established pursuant to section 18-6-803.7, C.R.S., a copy of any order issued pursuant to this section and shall deliver a copy of such order to the protected party.
(11) If the order has not been personally served, the peace officer responding to a call for assistance shall serve a copy of said order on the person named defendant therein and shall write the time, date, and manner of service on the protected person’s copy of such order and shall sign such statement.
(12) The duties of peace officers enforcing the civil protection order shall be in accordance with section 18-6-803.5, C.R.S., and any rules adopted by the Colorado supreme court pursuant to said section.
(13) A person failing to comply with any order of the court issued pursuant to this section shall be found in contempt of court or may be prosecuted for violation of a civil protection order pursuant to section 18-6-803.5, C.R.S.
HMS: The following paragraph makes it a duty on the Court and Attorney’s appearing in these cases to thoroughly research the existence of any OTHER protection orders that may be out there as between the parties.
(14) At the time a civil protection order is requested, the court shall inquire about, and the requesting party and such party’s attorney shall have an independent duty to disclose, any knowledge such party and such party’s attorney may have concerning the existence of any prior protection orders of any court addressing in whole or in part the subject matter of the requested civil protection order.
(15) A municipal court of record that is authorized by its municipal governing body to issue protection or restraining orders and any county court, in connection with issuing a civil protection order, shall have original concurrent jurisdiction with the district court to issue such additional orders as the municipal or county court deems necessary for the protection of persons. Such additional orders may include, but are not limited to:
(a) Restraining a party from threatening, molesting, or injuring any other party or the minor child of either of the parties;
(b) Restraining a party from contacting any other party or the minor child of either of the parties;
(c) Excluding a party from the family home upon a showing that physical or emotional harm would otherwise result;
(d) Excluding a party from the home of another party upon a showing that physical or emotional harm would otherwise result;
(e) (I) Awarding temporary care and control of any minor children of either party involved for a period of not more than one hundred twenty days.
(II) If temporary care and control is awarded, the order may include parenting time rights for the other party involved and any conditions of such parenting time, including the supervision of such parenting time by a third party who agrees on the record to the terms of the supervised parenting time and any costs associated with supervised parenting time, if necessary. If the restrained party is unable to pay the ordered costs, the court shall not place such responsibility with publicly funded agencies. If the court finds that the safety of any child or the protected party cannot be ensured with any form of parenting time reasonably available, the court may deny parenting time.
(II.5) The court may award interim decision-making responsibility of a child to a person entitled to bring an action for the allocation of parental responsibilities under section 14-10-123, C.R.S., when such award is reasonably related to preventing domestic abuse as defined in section 13-14-101 (2), or preventing the child from witnessing domestic abuse.
(III) The standard for the award of temporary care and control or interim decision-making responsibility shall be in accordance with section 14-10-124, C.R.S.
(f) Such other relief as the court deems appropriate;
(f.2) Restraining a party from threatening, molesting, injuring, killing, taking, transferring, encumbering, concealing, or disposing of an animal owned, possessed, leased, kept, or held by any other party, a minor child of any other party, or an elderly or at-risk adult;
(f.4) Specifying arrangements for possession and care of an animal owned, possessed, leased, kept, or held by any other party, a minor child of any other party, or an elderly or at-risk adult;
(g) (I) A temporary injunction that may be issued by the court that, upon personal service or upon waiver and acceptance of service by the defendant, is to be in effect against the defendant for a period determined to be appropriate by the court and restrains the defendant from ceasing to make payments for mortgage or rent, insurance, utilities or related services, transportation, medical care, or child care when the defendant has a prior existing duty or legal obligation or from transferring, encumbering, concealing, or in any way disposing of personal effects or real property, except in the usual course of business or for the necessities of life. The restrained party shall be required to account to the court for all extraordinary expenditures made after the injunction is in effect. Any injunction issued shall not exceed one hundred twenty days after the issuance of the permanent civil protection order.
(II) The provisions of the injunction shall be printed on the summons, and the petition and the injunction shall become an order of the court upon fulfillment of the requirements of subparagraph (I) of this paragraph (g).
(III) Nothing in this paragraph (g) shall preclude either party from applying to the district court for further temporary orders, an expanded temporary injunction, or modification or revocation. Any subsequent order issued by the district court as part of a domestic matter involving the parties shall supersede an injunction made pursuant to this paragraph (g).
(16) Any order for temporary care and control issued pursuant to subsection (15) of this section shall be governed by the “Uniform Child-custody Jurisdiction and Enforcement Act”, article 13 of title 14, C.R.S.
(17) Any order granted pursuant to paragraph (c) or (e) of subsection (15) of this section shall terminate whenever a subsequent order regarding the same subject matter is granted pursuant to the “Uniform Dissolution of Marriage Act”, article 10 of title 14, C.R.S., or the “Uniform Child-custody Jurisdiction and Enforcement Act”, article 13 of title 14, C.R.S., or the “Colorado Children’s Code”, title 19, C.R.S.
This provision allows the protected party – not the restrained party – to apply to modify or drop entirely the permanent restraining order. However, the restrained party must wait at least FOUR YEARS before seeking to modify or remove the same order.
(17.5) (a) Nothing in this section shall preclude the protected party from applying to the court at any time for modification, including but not limited to a modification of the duration of a protection order, or dismissal of a temporary or permanent protection order issued pursuant to this section. The restrained party may apply to the court for modification, including but not limited to a modification of the duration of the protection order, or dismissal of a permanent protection order pursuant to this section. However, if a permanent protection order has been issued or if a motion for modification or dismissal of a permanent protection order has been filed by the restrained party, whether or not it was granted, no motion to modify or dismiss may be filed by the restrained party within four years after issuance of the permanent order or after disposition of the prior motion.
HMS: The following provision provides that EVEN IF the protected party WANTS the restraining order lifted – IF the restrained party is convicted of a new act of Domestic Violence – the court cannot remove the restraining order.
Also there is a requirement of a recent criminal history check to be supplied to the Court and there is a requirement that the protected party be served PERSONALLY with a copy of the motion to modify the restraining order.
(b) (I) (A) Notwithstanding any provision of paragraph (a) of this subsection (17.5) to the contrary, after issuance of the permanent protection order, if the restrained party is convicted of any misdemeanor other than the original misdemeanor that formed the basis for the issuance of the protection order, the underlying factual basis of which has been found by a court on the record to include an act of domestic violence, as that term is defined in section 18-6-800.3 (1), C.R.S., or of any felony, then the protection order shall remain permanent and shall not be modified or dismissed by the court.
(B) Notwithstanding the prohibition in sub-subparagraph (A) of this subparagraph (I), a protection order may be modified or dismissed on the motion of the protected person, or the person’s attorney, parent or legal guardian if a minor, or conservator of legal guardian if one has been appointed; except that this sub-subparagraph (B) shall not apply if the parent, legal guardian, or conservator is the restrained person.
(II) A court shall not consider a motion to modify a protection order filed by a restrained party pursuant to paragraph (a) of this subsection (17.5) unless the court receives the results of a fingerprint-based criminal history record check of the restrained party that is conducted within ninety days prior to the filing of the motion. The fingerprint-based criminal history record check shall include a review of the state and federal criminal history records maintained by the Colorado bureau of investigation and federal bureau of investigation. The restrained party shall be responsible for supplying fingerprints to the Colorado bureau of investigation and to the federal bureau of investigation and paying the costs of the record checks. The restrained party may be required by the court to provide certified copies of any criminal dispositions that are not reflected in the state or federal records and any other dispositions that are unknown.
(c) Except as otherwise provided in this section, the issuing court shall retain jurisdiction to enforce, modify, or dismiss a temporary or permanent protection order.
(d) Any motion filed pursuant to paragraph (a) of this subsection (17.5) shall be heard by the court. The party moving for a modification or dismissal of a temporary or permanent protection order pursuant to paragraph (a) of this subsection (17.5) shall affect personal service on the other party with a copy of the motion and notice of the hearing on the motion, as provided by rule 4 (e) of the Colorado rules of civil procedure. The moving party shall bear the burden of proof to show, by a preponderance of the evidence, that the modification is appropriate or that a dismissal is appropriate because the protection order is no longer necessary. If the protected party has requested that his or her address be kept confidential, the court shall not disclose such information to the restrained party or any other person, except as otherwise authorized by law.
(e) In considering whether to modify or dismiss a protection order issued pursuant to this section, the court shall consider all relevant factors, including but not limited to:
(I) Whether the restrained party has complied with the terms of the protection order;
(II) Whether the restrained party has met the conditions associated with the protection order, if any;
(III) Whether the restrained party has been ordered to participate in and complete a domestic violence treatment program provided by an entity approved pursuant to section 16-11.8-103 (4) (a) (III) (C), C.R.S., and whether the restrained party has completed the program;
(IV) Whether the restrained party has voluntarily participated in any domestic violence treatment program or other counseling addressing domestic violence or anger management issues;
(V) The time that has lapsed since the protection order was issued;
(VI) When the last incident of abuse or threat of harm occurred or other relevant information concerning the safety and protection of the protected person;
(VII) Whether, since the issuance of the protection order, the restrained person has been convicted of or pled guilty to a crime, the underlying factual basis of which has been found by a court on the record to include an act of domestic violence, as that term is defined in section 18-6-800.3 (1), C.R.S., other than the original offense, if any, that formed the basis for the issuance of the protection order;
(VIII) Whether any other restraining orders or protective orders or protection orders have been subsequently issued against the restrained person pursuant to this section or any other law of this state or any other state; and
(IX) The circumstances of the parties, including the relative proximity of the parties’ residences and work places and whether the parties have minor children together.
HMS: Understanding Mutual Restraining Orders Law
This is a critical provision. Many of my clients ask – well if she is going to get a protection order on me – I want one on her – I will agree to one on me – if there is one placed on her – so called reciprocal or mutual restraining orders.
The following provision compels the Court to make certain there are actual grounds to order a mutual or reciprocal restraining order…. not just an agreement of the parties.
(18) A court shall not grant a mutual protection order to prevent domestic abuse for the protection of opposing parties unless each party has met his or her burden of proof as described in subsection (4) of this section and the court makes separate and sufficient findings of fact to support the issuance of the mutual protection order to prevent domestic abuse for the protection of opposing parties. No party may waive the requirements set forth in this subsection (18).
(20) Enactment of this section shall not affect the effectiveness of any civil protection or restraining order issued prior to July 1, 1999.
(21) (a) The court may assess a filing fee against a petitioner seeking relief under this section; except that the court may not assess a filing fee against a petitioner if the court determines the petitioner is seeking the protection order as a victim of domestic abuse as defined by section 13-14-101 (2); domestic violence as defined by section 18-6-800.3 (1), C.R.S.; stalking as described in section 18-3-602, C.R.S.; sexual assault as defined by section 18-3-402, C.R.S.; or unlawful sexual contact as defined by section 18-3-404, C.R.S. Petitioners shall be provided the necessary number of certified copies at no cost.
(b) Fees for service of process may not be assessed by a state agency or public agency against petitioners seeking relief under this section as a victim of conduct consistent with the following: Domestic abuse as defined by section 13-14-101 (2); domestic violence as defined by section 18-6-800.3 (1), C.R.S.; stalking as described in section 18-3-602, C.R.S.; sexual assault as defined by section 18-3-402, C.R.S.; or unlawful sexual contact as defined by section 18-3-404, C.R.S.
(c) At the permanent protection order hearing, the court may require the respondent to pay the filing fee and service-of-process fees, as established by the state agency, political subdivision, or public agency pursuant to a fee schedule, and to reimburse the petitioner for costs incurred in bringing the action.