Restraining Orders / Civil Protection Orders

Restraining Orders / Civil Protection Orders

By Carl O. Graham

domestic violence, protective order, restraining order

What is a restraining order? A restraining order, also known as a “civil protection order” is a court order which protects one party by prohibiting another from certain conduct, communications, or to stay a certain distance away from the protected person’s home, school or workplace. Violation of the protection order is a criminal offense.

The purpose of a civil protection order is to “promote safety, reduce violence and other types of abuse, and prevent serious harm and death.” C.R.S.13-14-100.2.

The court may issue a restraining order if it finds “an imminent danger exists to the person or persons seeking protection under the civil protection order.” C.R.S. 13-14-104.5(7)(a). In making this determination, the court shall consider all relevant evidence, but not deny relief based upon the length of time between the abuse or threat and the request for a protective order.

Conduct Outside of Colorado

In Parocha v Parocha, 2018 CO 41, the wife moved to Colorado to escape her husband’s horrendous domestic violence, including sexual and physical abuse, Husband had agreed she could move here, but only for three months. When the wife decided not to move back, the husband tried to coerce her to return with harassment and threats.

The trial court considered all of the evidence of abuse, including the abuse which occurred outside of Colorado, and the Colorado Supreme Court upheld that on appeal, finding that as long as some of the complained of conduct was directed at a Colorado resident, the courts had a sufficient basis for jurisdiction over a non-resident: "[W]e hold that an out-of-state party’s harassment of, threatening of, or attempt to coerce an individual known by the non-resident to be located in Colorado is a tortious act sufficient to establish personal jurisdiction under our long-arm statute." ¶17

Furthermore, jurisdiction was appropriate under the U.S. Constitution. By causing adverse effects in Colorado, Husband reasonably should have concluded he would be hauled into court here, so the exercise of jurisdiction over him comported with "traditional notions of fair play and substantial justice." ¶22.

Protections Available

Pursuant to C.R.S. 13-14-105(1), a court may issue a protection order necessary to protect a person by:

  1. Restraining the other from threatening or harming the protected party or their child;
  2. Prohibiting contact with the protected party or their child;
  3. Excluding a party from entering the family home or the home of another;
  4. Awarding temporary care & control of children for up to a year;
  5. Protecting against interference with the protected party’s workplace or school;
  6. Protecting pets or animals of the protected party;

And to prevent the restrained party from retaliating by starving the protected party financially, the court can also enter a temporary injunction ordering the restrained party to continue paying household bills, child care, and other expenses or from concealing assets.

How to Obtain a Protection Order

If there is a pending dissolution of marriage action, there is no need for a separate protection order proceeding - a motion can be filed seeking a protection order in the dissolution proceedings, and the district court can issue such an order. C.R.S. 13-14-104.5(5). The steps set out below describe the “standalone” process - and the complete process is spelled out in a 4-page instruction sheet from the judiciary.

Note that the TESSA Victim Advocacy Program provides assistance in obtaining protective orders.

  1. Gather Facts. To help gather the facts necessary for the court there is an incident checklist - it is not a mandatory form, but more of a checklist to aid the complainant, and examples of the types of behavior the judge may be looking for: incidents of verbal abuse, threats, physical abuse damage to property.
  2. Complaint for Civil Protection Order. The requesting person must complete a JDF 402, Verified Complaint/Motion for Civil Protection Order. All of the necessary forms, and instruction on how to complete them, can be found on the Colorado Judicial Branch web site.
  3. Information Needed for Complaint. The complaint information about the parties and specific acts, including:
    1. Reasons for seeking the restraining order.
    2. Where the protected person lives and works.
    3. Information regarding any joint children (in a separate JDF 404 Affidavit Regarding Children).
    4. Information about incidents resulting in the request for the protection order, including the most recent incident, the most serious incident, and any past incidents.
    5. Whether there are any other protective orders in place.
  4. File the Complaint with the Clerk of Court. In El Paso County, go to room S101 between 7:30 and 9:30 a.m. Monday through Friday. There is no filing fee for a protection order sought by the indigent, or for any case when the grounds for the order are domestic abuse, stalking, sexual assault or unlawful sexual contact. C.R.S. 13-14-109(2).
  5. Ex Parte Hearing. The requesting party will typically appear in front of a magistrate the same day for a brief, ex parte hearing (that means a hearing with the magistrate and requesting party, the other party is NOT present). That hearing does not last long - just a few minutes, during which the magistrate will ask limited questions, primarily to assess whether the requesting person is in imminent fear for his/her safety.
  6. Issuance of Temporary Protection Order. The judicial officer will issue a temporary protection order if he/she finds imminent danger and that a protection order is necessary to prevent prevent assault or threatened bodily harm, domestic abuse, sexual assault, stalking, etc. The Magistrate will also set the matter for a follow-up hearing within two weeks (C.R.S. 13-14-104.5(10)), with restrained party present, to determine whether the order should be made permanent.
  7. Serve Temporary Protection Order. The protected party is responsible for ensuring the Temporary Protection Order, complaint, and associated documents are served on the restrained party. C.R.S. 13-14-104.5(9). Though this could be a private process server, each sheriff’s office in Colorado must maintain a Civil Unit which will serve civil process. The El Paso County Sheriff’s Office Civil Unit will serve a domestic protection order for free! Make sure you bring the original certificate of service to the permanent protection order hearing.
  8. Permanent Protection Order Hearing. The court will set a hearing within 14 days on whether to make the temporary protection order permanent. Unlike the brief hearing before the temporary order was issued, this is a proper hearing with evidence, and the restrained order has the opportunity to appear, challenge evidence, and put on evidence of his/her own.
  9. Issuance of Permanent Protection Order. If “the or magistrate finds by a preponderance of the evidence that the respondent 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, the judge or magistrate shall order the temporary civil protection order to be made permanent or enter a permanent civil protection order with provisions different from the temporary civil protection order.” C.R.S. 14-13-106(1)(a). There is no need to find imminent danger.

Protection Order as Part of Divorce Proceeding

Can a court, in a divorce case, issue a temporary protection order? Yes. Pursuant to C.R.S. 14-10-108(2), either spouse may request a temporary protection order. However, the key distinction between a protection order issued as part of a divorce and a separate proceeding is that the order issued during a divorce expires!

Unless the court finds good cause to continue the protection order to a certain date, it expires upon entry of permanent orders (i.e. the decree of divorce).

An alternative to a full-blown protection order is a No-Contact Order issued as part of the divorce. Typically issued by mutual agreement, they provide some basic protections (not allowed to contact the other spouse), but lack the immediate enforceability of a Title 13 protective order in that the "protected party" cannot call the police to enforce the order. Instead, the enforcement is after-the-fact, for instance a contempt proceeding. When you have a situation of harassment, without true endangerment, and one spouse wants to just be "left alone" without necessarily hurting the other spouse's career, a no-contact order is a common alternative.

Can the Permanent Protection Order Hearing Be Delayed?

In lieu of issuing a permanent order, if both parties agree the judicial officer may continue the temporary order for up to one year. C.R.S. 14-10-106(1)(b).

Each party may, for good cause, request up to one 14-day extension of the time for a hearing. C.R.S. 13-13-106(1)(b). But the court is not required to grant the continuance, so make sure you have a good reason! Good cause warranting a continuance generally includes needing time to retain counsel, obtain evidence for the hearing, or witnesses to testify. Once a 2-week continuance has been granted, that party better show up ready at the next hearing, as a further continuance is unlikely.

What if a Party Does Not Appear at the Hearing?

In El Paso County, permanent protection order hearings typically start at 8:30 a.m., and the clerk will open the courtroom door a few minutes early. Upon taking the bench, the judicial officer will start calling the cases, and if one party is not there, will pass on the case, wait about 15 minutes, then recall the case.

If one party is absent, the court proceeds with a default hearing:

  • If the protected party does not appear, the protection order will be dismissed. The dismissal is without prejudice, which means the protected party could re-file for a new protection order in the future.
  • If the restrained party does not appear, the court will enter the Permanent Protection order without any admission by the restrained party, and mail a copy of order to the restrained party at the address listed.

What Happens After Issuance of a Protection Order?

A Temporary Protection Order takes immediate effect upon service. The restrained party is immediately prohibited from contacting any person listed a protected party and from going within a set distance (typically 100 feet) of the protected places.

If the temporary protection order prevents the restrained person from entering a shared residence, he/she may return to the residence, accompanied by a peace officer to the residence to obtain undisputed personal effects necessary for a normal standard of living. C.R.S. 13-14-104.5(11).

If you are the protected party, you should carry a copy of the protective order with you. And immediately call the police if the restrained person shows up at your residence, workplace, or tries to communicate with you. Don’t forget to mention the protective order. Do not contact the restrained person.

If you are the restrained party, obey the order. Do not approach the protected person, do not contact him/her (unless the order explicitly authorizes limited contact for the purposes of parenting), and do not ask a third party to contact the protected person on your behalf. Violation of the protection order is a crime, if you break it, you will be arrested. C.R.S. 18-6-803.5,

Protection Order & Children

At the first hearing after the Temporary Protection Order is entered the Court will address how to proceed with the children who are named protected parties. Depending on the severity of the allegations raised in the Complaint specifically, whether the children witnesses the incident or were victims themselves, the Civil Protection Court will try to establish some contact for the restrained party. Where the children witnessed the incident or were themselves victims the Civil Protection Court may allow for supervised parenting time through CASA. The parties may be ordered to share the cost of this parenting, or one party may be ordered to share the entire cost.

Out-of-State Protection Orders

Colorado will honor protection orders issued by another state, territory or Indian tribe, and give the order “full faith & credit” if the order was issued by a court with jurisdiction after a hearing where the restrained party had the opportunity to appear and be heard. C.R.S. 13-14-110.

The protected party may register an out-of-state protective order with the court, but is not required to do so.

Firearms & Restraining Orders

A federal law, known as the Lautenberg Amendment, codified at 18 U.S.Code § 922 (g)(8), prohibits any person from possessing a firearm who “is subject to a court order that—

(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;

(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and

(C)

(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or

(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury”

When a Colorado court issues a protective order covered by the Lautenberg Amendment, the law requires the court to order the restrained person not to possess firearms or ammunition, and to surrender them. C.R.S. 13-14-105.5.

The court may also order the restrained person to surrender the firearms and ammunition before being released from custody, otherwise the restrained party must surrender the firearms within:

  • 24 hours if served with the order in open court.
  • 48 hours if served with the order outside of court.
  • 72 hours to surrender firearms and 96 hours to surrender ammunition if the restrained person establishes to the court’s satisfaction an inability to comply sooner.

The firearms & ammunition may be surrendered by:

  • Sale to a licensed firearms dealer.
  • Storage by a law enforcement agency (if willing to store them, and a fee may be charged).
  • Lawful sale to a private party.

The statute requires the recipient of the firearms and ammunition to issue written proof of receipt, which the restrained party must file with the court within 3 days of surrender. C.R.S. 14-13-105.5(9)(a).

In addition to violating federal law, a restrained party who attempts to purchase or possess a firearm or ammunition is committing a crime. C.R.S. 18-6-803.5(1)(c).

How Long Does a Protection Order Last?

The provisions pertaining to children expire upon the earlier of (1) entry of parenting orders by a district court in a domestic relations proceeding, or (2) one year. C.R.S. 13-14-108(1).

A civil protection order does not automatically expire. That does not necessarily mean it is permanent, however. Either the protected party, or the restrained party, may seek to modify a restraining order pursuant to C.R.S. 13-14-108(2).

Do You Need a Protection Order Lawyer in Colorado Springs?

The family law attorneys at Graham.Law have years of experience helping clients through the Colorado legal system. We know Colorado family laws, inside and out, from divorce to legal separation, from annulments to military divorce issues. And we know how to fight for restraining orders, or to defend them. For more information about our El Paso County family law firm, click on:

Colorado family law is all we do. Period.

Tag: 
Domestic Violence