Protection (a.k.a. Restraining) Orders can be a critical component to a person’s safety during an emotional family law case. Here is how the process works.
Restraining orders, or protection orders as they are called in Colorado, can be very important during a family law case. Though often sought by a victim after someone has been arrested or criminally charged, a protection order is actually a civil order. Because of this, there are many steps that must be taken to both secure the protection order and, just as importantly, keep it in place. However, don’t be discouraged. With a little determination, the process is easily managed. There are three types of civil protection orders: 1) an Emergency Protection Order; 2) a Temporary Protection Order; and 3) a Permanent Protection Order.
Emergency Protection Orders
It is often the case that the need for a protection order does not occur during “normal business hours.” Because of that, when a protection order is required anytime a court is closed, the Chief Judge in that district makes sure someone to available to issue an emergency protection order. This allows a victim to seek an order immediately, regardless of the time of day or week, and can even be sought by a police officer on your behalf.
However, these emergency orders are short-lived. Specifically, “[a]n emergency protection order . . . shall expire not later than the close of judicial business on the next day of judicial business following the day of issue, unless otherwise continued by the court.” So, it is very important that you visit the court on the next day the court is open for business.
Temporary Protection/Restraining Order
In order to seek a temporary order (or to convert an emergency order to a temporary order), you must go to either the county court or district court where: 1) the incident occurred; 2) where one of the parties lives; or 3) where one of the parties works. However, if you have already started a family law matter, such as a dissolution of marriage (i.e., divorce), then it may make sense to go to the district court where you filed for divorce, if it meets the above requirements. This is because the cases can then be easily combined, known as “consolidation.”
Temporary Protection Orders Hearings
A court is allowed to issue a Temporary Protection Order when “an imminent danger exists to the person or persons seeking protection . . ..” Importantly, “the court shall consider all relevant evidence concerning the safety and protection of the persons seeking the protection order.” Also, the court shall not deny a petitioner the relief requested because of the length of time between an act of abuse or threat of harm and the filing of the petition for a protection order.
The temporary order can be issued to protect a person and his or her children in a number of ways, including:
1) Restraining a party from threatening, molesting, or injuring any other party or the minor child of either of the parties;
2) Restraining a party from contacting any other party or the minor child of either of the parties;
3) Excluding a party from the family home upon a showing that physical or emotional harm would otherwise result;
4) Excluding a party from the home of another party upon a showing that physical or emotional harm would otherwise result;
5) Awarding temporary care and control of any minor children of either party involved for a period of not more than one year;
6) Restraining a party from interfering with a protected person at the person’s place of employment or place of education or from engaging in conduct that impairs the protected person’s employment, educational relationships, or environment;
7) Restraining a party from molesting, injuring, killing, taking, transferring, encumbering, concealing, disposing of or threatening harm to an animal owned, possessed, leased, kept, or held by any other party or a minor child of any other party;
8) Specifying arrangements for possession and care of an animal owned, possessed, leased, kept, or held by any other party or a minor child of any other party;
9) Granting such other relief as the court deems appropriate; and
10) Entering a temporary injunction restraining the respondent from ceasing to make payments for mortgage or rent, insurance, utilities or related services, transportation, medical care, or child care when the respondent 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 and requiring the restrained party to account to the court for all extraordinary expenditures made after the injunction is in effect.
As noted, in order to issue these protections, the court must find that there is an imminent danger that these events will occur. That will require a hearing. When you take the stand to tell the judge what has happened, it is best to give him the “who, what, when, where, why, how, and how many times” of the events. If you have an attorney, he or she will guide you through this. Additionally, because these hearings happen rapidly, the other party likely won’t be at the hearing. That is why the protections are temporary. Once issued, the orders must be served on the person accused of the conduct so that he or she has the opportunity to come to court within 14 days to provide their side of the story.
Permanent Protection Orders
As noted above, after the temporary protection order is issued, the court will set another hearing date to allow the person accused to come in to the court and provide their side of the story. If they do not show up, the temporary order will likely become permanent. Relatedly, however, if the party seeking protection fails to show up for the permanent protection orders hearing, the temporary protections will usually be dismissed.
At this hearing, the person seeking protection will again tell the judge what happened and provide any additional evidence available. In order to continue the protections, the court must find that the person accused “has committed acts constituting grounds for issuance of a civil protection order and that, unless restrained, will continue to commit such acts or acts designed to intimidate or retaliate against the protected person.” Importantly, “[a] finding of imminent danger to the protected person is not a necessary prerequisite to the issuance of a permanent civil protection order.” If the court finds that the acts are likely to continue, the temporary orders will be made permanent.
If you or a family member are in danger, contact the police immediately. If needed, have them request an emergency protection order on your behalf. After you are safe, you may wish to consider contacting an attorney. If you do so, my firm stands ready to assist you.