Domestic Violence & Colorado Child Custody

Overview - Domestic Abuse & Colorado Child Custody

Under Colorado’s “best interests of the child” statute, the family law judge is required to consider whether a parent has committed domestic violence or child abuse. No criminal conviction is needed - if the judge finds by a preponderance of the evidence​ that a parent committed domestic abuse, it may affect parenting time, and it will trigger legal limitations on shared decision-making.

• Domestic Violence means actual or threatened physical violence against an intimate partner, property, or pet. A parent who committed domestic violence cannot share decision-making over the victim’s objection unless the court finds the parents can still cooperate safely for the other parent and child. 
• Child Abuse includes violence against children who are not the subject of the custody action. A parent who committed child abuse cannot share decision-making over the objection of the other parent, but, curiously, may have sole decision-making.
• Sexual Assault Resulting in Conception of the Child. There is a rebuttal presumption against joint decision-making.

While stalking and harassment do not trigger the automatic restrictions of child abuse or domestic violence, they are certainly relevant conduct the judge will consider when determining parenting time and decision-making.

LEARN MORE with the following in-depth discussion of how domestic abuse or sexual assault affects parenting time and decision-making in a Colorado custody case.

In Depth - Domestic Abuse & Colorado Child Custody

In Colorado, whether a parent has committed domestic abuse against the other parent or children is one of the specific statutory factors relevant to the “best interests of the children,” thereby affecting both parenting time and decision-making. Moreover, there are other potential consequences, including a criminal conviction, protective order, and an emergency motion to restrict parenting time.

“When the court finds by a preponderance of the evidence that one of the parties has committed child abuse or neglect, domestic violence, or sexual assault resulting in the conception of the child, the court shall consider, as the primary concern, the safety and well-being of the child and the abused party.”

C.R.S. 14-10-124(4)(d).

Domestic Violence vs Domestic Abuse

For purposes of Colorado child custody laws, the term “domestic violence” means:

“An act of violence or a threatened act of violence upon a person with whom the actor is or has been involved in an intimate relationship, and may include any act or threatened act against a person or against property, including an animal, when used as a method of coercion, control, punishment, intimidation, or revenge directed against a person with whom the actor is or has been involved in an intimate relationship.”

C.R.S. 14-10-129(1.3)(a).

Examples of behavior which, if intended to control or intimidate, would be included under this definition include:

• Physical assault against another, such as pushing, shoving, hitting, etc
• Sexual assault
• Damage to property - breaking things, punching holes in walls, etc
• Threatening any of the above

Note that harming the family pet is also included!

The definition of domestic violence in the custody statute is very similar to the C.R.S. 18-6-800.3 definition of domestic violence for purposes of criminal defense. However, it is narrower than the term “domestic abuse” used for purposes of obtaining a protective order, which includes: “any act, attempted act, or threatened act of violence, stalking, harassment, or coercion.” C.R.S. 13-14-101(2).

In other words, while harassment or stalking can result in a protective order, it does not trigger some of the automatic parenting provisions outlined in this article. But that is not to say harassment is irrelevant - on the contrary, judges tend to come down hard on parents who harass the other, and as discussed below, there is often a very negative impact on parenting.

Child Abuse vs Punishment

Child abuse is not defined by the family code, so turning to the criminal codes, C.R.S. 18-6-401(1)(a) provides:

"A person commits child abuse if such person causes an injury to a child's life or health, or permits a child to be unreasonably placed in a situation that poses a threat of injury to the child's life or health, or engages in a continued pattern of conduct that results in malnourishment, lack of proper medical care, cruel punishment, mistreatment, or an accumulation of injuries that ultimately results in the death of a child or serious bodily injury to a child."

That's a pretty expansive definition, but it is also not the end of the analysis. A parent has more leeway to use force than a non-parent, per C.R.S. 18-1-703(1)(a):

"A parent, guardian, or other person entrusted with the care and supervision of a minor or an incompetent person, and a teacher or other person entrusted with the care and supervision of a minor, may use reasonable and appropriate physical force upon the minor or incompetent person when and to the extent it is reasonably necessary and appropriate to maintain discipline or promote the welfare of the minor or incompetent person." (Emphasis added).

However, this does not give the parent a green light to use any amount of force - note the italicized words. In one court decision, a father had a history with multiple examples of force, such as "ferociously" belting his daughter's bare buttocks 32 times, pinning her down down by her head and striking her with a sandal in "forceful and frenzied" manner, and more. The trial court found child abuse and restricted the father's time, describing his conduct as "abhorrent, violent, and beyond the bounds of proper child rearing,” and found that his actions were “not proportional” to any “alleged infraction” by the children. In re: Marriage of Brooks, ¶ 4 (Colo.App. 2020) (Unpublished decision).

The father appealed, arguing his actions were legitimate discipline as he believed it appropriate to "instill fear" in the children, and the Court of Appeals upheld the decision, also rejecting the father's argument that the court erred by not considering that the discipline was justified by his religious beliefs:

“We therefore conclude the magistrate and district court did not err in rejecting father’s contention that his religious beliefs excused or justified the physical abuse that the court found he had inflicted upon his children, and in relying upon and applying Colorado civil law to these proceedings." ¶ 50.

Abuse Against Other Children

Under the theory that a parent who abuses one child may abuse another, even if there is no evidence that a parent has abused or neglected the particular child in a custody proceeding, the court can, and will, consider evidence of abuse against other children as well.

The Colorado Court of Appeals has affirmed that the statute applies to any child abuse, and is not limited to abuse committed against joint children of the parties. In In re: Marriage of McCaulley-Elfert, 70 P.3d 590 (Colo.App. 2003), the trial judge found that the father had committed sexual assault against his stepdaughter, which impacted his parenting over the parties' joint son. The father appealed, and the Court of Appeals upheld the trial court:

"Nothing within these statutory provisions precludes the court's inquiry into the alleged abuse or neglect when it involves other children. Such a restriction would unduly hinder a court's ability to carry out the statutory directive of assessing all relevant factors when making the best interests determination. Evidence of abuse or neglect, even when the victim is unrelated to the perpetrator, is probative of the overall home environment and the interaction of the parties with their children, issues that lie at the core of any parental responsibility or parenting time proceeding."

Moreover, in an unpublished decision from 2020, the Court of Appeals held that considering evidence of abuse against other children is mandatory: “we conclude that the district court was required to consider the allegations of sexual assault against [other child] as part of its parenting time and decision-making analysis regarding [joint child].”  In re: Marriage of Rose (Colo.App. 2020) ¶ 11. However, while required to consider the evidence, Rose also held that the trial judge is not required to make factual findings on whether such abuse occurred.

No Criminal Conviction Needed To Find Abuse

In a criminal case, the government must prove the conduct occurred “beyond a reasonable doubt” - that’s a pretty high standard of proof. To most of us, that means pretty close to a certainty, maybe about 99% likely.

Colorado Pattern Civil Jury Instruction 3:1 defines the “preponderance of the evidence” standard to mean “it is more probably true than not.” In other words, it’s more likely than not that the conduct occurred. So instead of proving the conduct happened to the criminal standard, this requires a 51% likelihood.

So while a criminal conviction for domestic violence would be pretty conclusive evidence in a child custody case that the abuse occurred, no conviction is needed for a court to find domestic violence occurred. It is common at divorce for there to be allegations of a years-long pattern of domestic violence that was not reported to authorities, and for courts to find domestic violence even without a criminal conviction.

Required Considerations When Domestic Violence

When the court finds a parent has committed child abuse or neglect, domestic violence or sexual assault, the judge is required to consider the safety of the child and other party when formulating a parenting schedule. Pursuant to C.R.S. 14-10-124(e), additional protections a court may impose include:

• Orders limiting contact between the parties
• Exchanging the child in a protected setting
• Supervised parenting
• Restricting overnights
• An order to refrain from alcohol or drugs during parenting, or for 24 hours preceding it
• Keeping the child or other party’s address confidential
• Pay support through the Family Support Registry
• Any other appropriate conditions.

The judge may also order domestic violence evaluations or treatment. C.R.S. 14-10-124(4)(f).

Note that none of these are required remedies - this is just a non-exhaustive list of the potential orders the court is required to consider to protect the child or other parent. However, the statute does provide for limitations on what a domestic relations judge can order, as set forth below.

No Joint Decision-Making If Child Abuse Or Neglect

A parent who committed child abuse or neglect cannot share joint decision-making over the objection of the other parent. C.R.S. 14-10-124(4)(a)(I) provides:

“If the court finds that one of the parties has committed child abuse or neglect, then it shall not be in the best interests of the child to allocate mutual decision-making with respect to any issue over the objection of the other party or the legal representative of the child.”

Abuser Can Have Sole Decision-Making & Be Majority Parent

There is an interesting twist to decision-making issue. While the statute precludes the perpetrator from sharing joint decision-making, it does not prevent that parent from having sole decision-making. The Colorado Court of Appeals considered this very issue in a case where a father had plead guilty to third degree assault for striking the couple's 8 year-old son, and the wife had also presented credible evidence of spousal abuse. For a variety of reasons, including the recommendations of multiple parenting professionals, the trial judge designated the father as the child's primary residential parent and awarded him sole decision-making. In re: Marriage of Bertsch, 97 P.3d 219 (Colo.App. 2004).

The mother appealed, and the Court of Appeals upheld the trial court determination, holding that while past abuse may indicate the parents cannot work together, it does not necessarily mean the prior abuser cannot successfully raise the children on his own: "the General Assembly did not mean to preclude as a matter of law abusive parents or spouses from exercising individual, and even sole decision-making responsibility." Bertsch at 222.

In a similar case, the mother was convicted of felony menacing and child abuse for wielding a knife against the father during an altercation. After multiple hearings and evaluations, the trial judge made the mother the primary residential parent with a transition to equal parenting, and awarded her sole decision-making over most issues. (Long story, but in essence the mother had long been the primary caregiver, the child was more attached to her, and while the mother was benefiting from counseling, the father was getting angrier and worse. In re: Marriage of Yates, 148 P.3d 304 (Colo.App. 2006).

The father appealed, and the Court of Appeals upheld the decision:

“A finding that a parent has been a perpetrator of child abuse or spousal abuse does not bar an award of parenting time or decision-making responsibility to that parent. Such factors are but two, albeit important, factors in assessing the best interests of the child.”

Yates at 308. Essentially, this was seen as a story of redemption, or at least the lesser of two evils: “We, too, are persuaded that a parent who has abused a child or a spouse may become a fit parent, and may indeed be more fit than the alternative parent.” Yates at 309..

Decision-Making When Domestic Violence Against Spouse

If one parent was physically abusive to the other, the Colorado Assembly has determined it is not normally going to be in the child’s best interests for the parents to share decision-making. C.R.S. 14-10-124(4)(a)(III) provides:

“If the court finds by a preponderance of the evidence that one of the parties has committed domestic violence: (A) It shall not be in the best interests of the child to allocate mutual decision-making responsibility over the objection of the other party or the legal representative of the child, unless the court finds that there is credible evidence of the ability of the parties to make decisions cooperatively in the best interest of the child in a manner that is safe for the abused party and the child; and (B) The court shall not appoint a parenting coordinator solely to ensure that mutual decision-making can be accomplished.”

Unlike the situation with child abuse, however, where the court cannot order joint decision-making over the other parent’s objection, with domestic violence the trial judge could order joint decision-making if the evidence is that the parents can still cooperate to raise their children. Experience suggests, however, that judges are reluctant to order joint decision-making between an abuser and victim.

Sexual Assault & Parenting

There has been an increasing trend in the U.S. for states to limit or ban a parent from normal parenting time with a child conceived as a result of that parent’s sexual assault against the other. The federal government has even stepped in, albeit very lightly, with the Rape Survivor Child Custody Act. Despite the ambitious name, and comprehensive findings about the traumatic effects of a rapist having parental rights (34 U.S. Code § 21302), the statute itself is surprisingly limited to bribing states with extra funding to implement such laws. 34 U.S. Code § 21303.

Colorado’s best interests of the child statute does not outright prohibit a rapist from having a parenting role over a child conceived as a result of that sexual assault, but instead creates two different statutory presumptions to protect children who were conceived as a result of sexual assault:

Decision-Making. “There is a rebuttable presumption that it is not in the best interests of the child to allocate sole or split decision-making authority to the party found to have committed sexual assault or to allocate mutual decision-making between a party found to have committed sexual assault and the party who was sexually assaulted with respect to any issue.” C.R.S. 14-10-124(4)(a)(III).

So sexual assault differs from both child abuse (where there can be no joint decision-making over the other’s objection, but sole decision-making to the perpetrator is okay), and domestic violence (where the court can order joint decision-making only if evidence of the parties cooperating in the child’s best interests). This third standard creates a presumption against any role in decision-making for the child, unless the perpetrator overcomes that presumption and introduces evidence supporting joint decision-making.

The 10th Circuit Court of Appeals (the federal appellate court for the region including Colorado) ruled that a court cannot automatically restrict a sex offender parent of his constitutional rights to see a child without making specific findings that such a requirement is necessary. United States v. Burns, 775 F.3d 1221, 1222 (10th Cir. 2014). There, the father was convicted of child pornography possession, and upon release from incarceration, one of the conditions of his supervised release imposed by the criminal judge (i.e. not a family court judge) was a requirement to get permission from the probation department before contact with any minors, including his own daughter. The 10th Circuit reversed, finding:

“This restriction intrudes on Mr. Burns's constitutional right to familial association. Because of this intrusion on a constitutional right, the district court should have made particularized findings before restricting Mr. Burns's contact with his daughter.”

Parenting Time. The court is required to consider “whether it is in the best interests of the child to prohibit or limit the parenting time of that party with the child.” C.R.S. 14-10-124(4)(IV). There is not requirement to limit a parent’s time, just that the court must consider the sexual assault.

Fleeing Domestic Violence

The “best interests” statute also provides that the court should not penalize a parent for fleeing the home to avoid violence:

“If a party is absent or leaves home because of an act or threatened act of domestic violence committed by the other party, such absence or leaving shall not be a factor in determining the best interests of the child.”

Share Custody After Harassment Or Stalking?

While harassment by one parent against another does not automatically trigger protections as physical and sexual assault do, that is not to say such misconduct is irrelevant. C.R.S. 14-10-124(1.5)(a) contains at least two factors the court is required to consider which are potentially at issue with harassment:

“VI. The ability of the parties to encourage the sharing of love, affection, and contact between the child and the other party.

VII. Whether the past pattern of involvement of the parties with the child reflects a system of values, time commitment, and mutual support.”

Moreover, for purposes of decision-making only, one of the additional factors the court is required to consider is whether there is “credible evidence of the ability of the parties to cooperate and to make decisions jointly.” C.R.S. 14-10-124(1.5)(b)(I).

Graham.Law has litigated plenty of parenting cases where one parent is a “bad actor”, and even without evidence of physical abuse, there are recordings or texts where the parent shouts obscenities at the other, calls her a “f--n bitch,” etc. And unless the insults and harassment was mutual, in many of those instances the abusive communications were a sufficient reason for the court to hold that joint decision-making was inappropriate.

Restriction of Abuser’s Parenting Time

If a parent’s abuse endangers the child, a party may request that the Court restrict that parent’s time under C.R.S. 14-10-129(1)(b)(I) upon a finding that “the parenting time would endanger the child's physical health or significantly impair the child's emotional development.”

Mediation After Domestic Violence?

In an attempt to nudge the litigants towards settlement, Colorado courts generally require mediation prior to a contested domestic relations hearing. However, the mediation statute provides:

“Any court of record, in its discretion, may refer a case to any ancillary form of alternative dispute resolution; except that the court shall not refer the case to any ancillary form of alternative dispute resolution where one of the parties claims that it has been the victim of physical or psychological abuse by the other party and states that it is thereby unwilling to enter into ancillary forms of alternative dispute resolution… Such forms of alternative dispute resolution may include, but are not limited to: arbitration, early neutral evaluation, med-arb, mini-trial, multi-door courthouse concepts, settlement conference, special master, summary jury trial, or any other form of alternative dispute resolution which the court deems to be an effective method for resolving the dispute in question.”

C.R.S. 13-22-313(1). Note that the prohibition on mediation does not require a finding of abuse, just a claim of physical or psychological abuse.

Domestic Violence & Parenting Coordinator

This statute does not prevent a court from appointing a parenting coordinator under C.R.S. 14-10-128.1. Instead, that statute has no outright bar, just a provision that a “court may consider the effect of any claim or documented evidence of domestic violence” prior to appointing a parenting coordinator. C.R.S. 14-10-128.1(2)(b).

In In re: Marriage of Rozzi, 190 P.3d 815 (Colo.App. 2008), the parties disputed decision-making, and the Child & Family Investigator recommended joint decision-making, with the appointment of a parenting coordinator with decision-making authority. Despite the mother’s allegations of domestic violence, the CFI found insufficient evidence of abuse.

The trial court adopted the recommendation for a parenting coordinator, however as C.R.S. 14-10-128.3 requires “written consent of both parties” prior to appointing a decision-maker, the court could not give the parenting coordinator decision-making power over the mother’s objection. The mother appealed, and the Court of Appeals upheld the trial court.

Military Families

If the alleged abuser is in the military, see the Domestic Violence Protection article in the Military Divorce Guide.

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