Civil Protection Orders — C.R.S. 13-14

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Index

Current law

13-14-101 - Definitions.

13-14-102 - Civil protection orders - legislative declaration.

13-14-103 - Emergency protection orders.

13-14-104 - Foreign protection orders.

Commentary

Protection orders do not protect

Suggested revisions


 

Current law (September 2010)

13-14-101 - Definitions.

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For purposes of this article, unless the context otherwise requires:

(1) "Abuse of the elderly or of an at-risk adult" means mistreatment of a person who is sixty years of age or older or who is an at-risk adult as defined in section 26-3.1-101 (1), C.R.S., including but not limited to repeated acts that:

(a) Constitute verbal threats or assaults;

(b) Constitute verbal harassment;

(c) Result in the inappropriate use or the threat of inappropriate use of medications;

(d) Result in the inappropriate use of physical or chemical restraints;

(e) Result in the misuse of power or authority granted to a person through a power of attorney or by a court in a guardianship or conservatorship proceeding that results in unreasonable confinement or restriction of liberty; or

(f) Constitute threats or acts of violence against, or the taking, transferring, concealing, harming, or disposing of, an animal owned, possessed, leased, kept, or held by the elderly or at-risk adult, which threats or acts are intended to coerce, control, punish, intimidate, or exact revenge upon the elderly or at-risk adult.

(1.5) "Adult" means a person eighteen years of age or older.

(2) "Domestic abuse" means any act or threatened act of violence that is committed by any person against another person to whom the actor is currently or was formerly related, or with whom the actor is living or has lived in the same domicile, or with whom the actor is involved or has been involved in an intimate relationship. "Domestic abuse" may also include any act or threatened act of violence against:

(a) The minor children of either of the parties; or

(b) An animal owned, possessed, leased, kept, or held by either of the parties or by a minor child of either of the parties, which threat or act is intended to coerce, control, punish, intimidate, or exact revenge upon either of the parties or a minor child of either of the parties.

(2.2) "Minor child" means a person under eighteen years of age.

(2.3) "Protected person" means the person or persons identified in a protection order as the person or persons for whose benefit the protection order was issued.

(2.4)

(a) "Protection order" means any order that prohibits the restrained person from contacting, harassing, injuring, intimidating, molesting, threatening, or touching any protected person, or from threatening, taking, transferring, concealing, harming, or disposing of an animal owned, possessed, leased, kept, or held by a protected person, or from entering or remaining on premises, or from coming within a specified distance of a protected person or premises or any other provision to protect the protected person from imminent danger to life or health that is issued by a court of this state or a municipal court and that is issued pursuant to:

(I) This article, section 18-1-1001, C.R.S., section 19-2-707, C.R.S., section 19-4-111, C.R.S., or rule 365 of the Colorado rules of county court civil procedure;

(II) Sections 14-4-101 to 14-4-105, C.R.S., section 14-10-107, C.R.S., section 14-10-108, C.R.S., or section 19-3-316, C.R.S., as those sections existed prior to July 1, 2004;

(III) An order issued as part of the proceedings concerning a criminal municipal ordinance violation; or

(IV) Any other order of a court that prohibits a person from contacting, harassing, injuring, intimidating, molesting, threatening, or touching a person, or from threatening, taking, transferring, concealing, harming, or disposing of an animal owned, possessed, leased, kept, or held by a person, or from entering or remaining on premises, or from coming within a specified distance of a protected person or premises.

(b) For purposes of this article only, "protection order" includes any order that amends, modifies, supplements, or supersedes the initial protection order. "Protection order" also includes any restraining order entered prior to July 1, 2003, and any foreign protection order as defined in section 13-14-104.

(2.8) "Restrained person" means a person identified in a protection order as a person prohibited from doing a specified act or acts.

(3) "Stalking" means the crime of stalking as described in section 18-3-602, C.R.S.

 

Source: L. 99: Entire article added, p. 495, § 1, effective July 1. L. 2000: (3) amended, p. 1012, § 3, effective July 1. L. 2003: IP(1) amended and (2.3), (2.4), and (2.8) added, p. 995, § 1, effective July 1. L. 2004: (1.5) and (2.2) added and (2.4) amended, p. 544, § 1, effective July 1. L. 2010: (1)(e), (2), IP(2.4)(a), and (2.4)(a)(IV) amended and (1)(f) added, (SB 10-080), ch. 78, p. 264, § 1, effective July 1; (3) amended, (HB 10-1233), ch. 88, p. 295, § 3, effective August 11.

ANNOTATION

Law reviews. For article, "Statutes Consolidate Civil Restraining Orders," see 28 Colo. Law. 39 (October 1999). For article, "Crisis Intervention to Prevent Elder Abuse: Emergency Guardianships and Other Legal Procedures" see 33 Colo. Law. 91 (July 2004).


 

13-14-102 - Civil protection orders - legislative declaration.

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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.

(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.

(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.

(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.

(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.

(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) 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.

(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.

(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) 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.

(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.

(9)

(a) On the return date of the citation, or on the day to which the hearing has been continued, the judge or magistrate 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 and 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. 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.

(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. 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.

(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.

(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.

(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.

(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.

(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).

(19) Repealed.

(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.

 

Source: L. 99: Entire article added, p. 496, § 1, effective July 1. L. 2000: IP(1), (5), and (6) amended, (2.5) added, and (19) repealed, pp. 1012, 1013, §§ 4, 5, 6, effective July 1; (16) and (17) amended, p. 1538, § 5, effective July 1. L. 2002: (4) amended, p. 323, § 1, effective April 19; (9)(b) amended and (17.5) added, p. 491, § 1, effective July 1; (11) amended and (21) added, p. 1143, § 1, effective July 1. L. 2003: IP(1), (1)(c), (2), (3) to (9), (12), (13), (14), IP(15), (17.5), (18), and (21) amended, p. 996, § 2, effective July 1. L. 2004: (1), (5), (7), (8)(b), (8)(c), (9), (10), IP(15), (15)(e), and (20) amended and (1.5), (3.3), and (3.7) added, p. 545, § 2, effective July 1; (17.5)(b)(II) amended, p. 74, § 1, effective September 1. L. 2007: (1) amended and (15)(g) added, pp. 940, 941, §§ 1, 2, effective July 1. L. 2010: (15)(f.2) and (15)(f.4) added, (SB 10-080), ch. 78, p. 265, § 2, effective July 1; (17.5)(e)(III) amended, (HB 10-1422), ch. 419, p. 2068, § 22, effective August 11; (21)(a) and (21)(b) amended, (HB 10-1233), ch. 88, p. 296, § 4, effective August 11.

ANNOTATION

Law reviews. For article, "Statutes Consolidate Civil Restraining Orders," see 28 Colo. Law. 39 (October 1999). For article, "Overview of Colorado's New Domestic Violence Leave Law," see 31 Colo. Law. 69 (December 2002). For article, "Crisis Intervention to Prevent Elder Abuse: Emergency Guardianships and Other Legal Procedures" see 33 Colo. Law. 91 (July 2004). For article, "Protecting Clients From Abuse and Identity Theft," see 34 Colo. Law. 43 (October 2005).

 

Based on the plain language of the statute, the finding of imminent danger is a prerequisite only to the issuance of a temporary protection order. In re Fiffe, 140 P.3d 160 (Colo. App. 2005).

 

Procedural due process does not require a finding of imminent danger when the parties are accorded the requisite constitutional safeguards of notice and an opportunity to be heard. In re Fiffe, 140 P.3d 160 (Colo. App. 2005).


 

13-14-103. Emergency protection orders.

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(1)

(a) Any county or district court shall have the authority to enter an emergency protection order pursuant to the provisions of this subsection (1).

(b) An emergency protection order issued pursuant to this subsection (1) may include:

(I) Restraining a party from threatening, molesting, injuring, or contacting any other party, a minor child of either of the parties, or a minor child who is in danger in the reasonably foreseeable future of being a victim of an unlawful sexual offense or domestic abuse;

(II) Excluding a party from the family home or from the home of another party upon a showing that physical or emotional harm would otherwise result;

(III) Awarding temporary care and control of any minor child of a party involved;

(IV) Enjoining an individual from contacting a minor child at school, at work, or wherever he or she may be found;

(V) 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 either of the parties, or an elderly or at-risk adult; or

(VI) Specifying arrangements for possession and care of an animal owned, possessed, leased, kept, or held by any other party, a minor child of either of the parties, or an elderly or at-risk adult.

(c) In cases involving a minor child, the juvenile court and the district court shall have the authority to issue emergency protection orders to prevent an unlawful sexual offense, as defined in section 18-3-411 (1), C.R.S., or to prevent domestic abuse, as defined in section 13-14-101 (2), when requested by the local law enforcement agency, the county department of social services, or a responsible person who asserts, in a verified petition supported by affidavit, that there are reasonable grounds to believe that a minor child is in danger in the reasonably foreseeable future of being the victim of an unlawful sexual offense or domestic abuse, based upon an allegation of a recent actual unlawful sexual offense or domestic abuse or threat of the same. Any emergency protection order issued pursuant to this subsection (1) shall be on a standardized form prescribed by the judicial department and a copy shall be provided to the protected person.

(d) The chief judge in each judicial district shall be responsible for making available in each judicial district a judge to issue, by telephone, emergency protection orders at all times when the county and district courts are otherwise closed for judicial business. Such judge may be a district court or county court judge or a special associate, an associate, an assistant county judge, or a magistrate.

(e) When the county, district, and juvenile courts are unavailable from the close of business at the end of the day or week to the resumption of business at the beginning of the day or week and a peace officer asserts reasonable grounds to believe that an adult is in immediate and present danger of domestic abuse, based upon an allegation of a recent incident of actual domestic abuse or threat of domestic abuse, or that a minor child is in immediate and present danger of an unlawful sexual offense, as defined in section 18-3-411 (1), C.R.S., or of domestic abuse, as defined in section 13-14-101 (2), a judge made available pursuant to paragraph (d) of this subsection (1) may issue a written or verbal ex parte emergency protection order. Any written emergency protection order issued pursuant to this subsection (1) shall be on a standardized form prescribed by the judicial department and a copy shall be provided to the protected person.

(f) An emergency protection order issued pursuant to this subsection (1) 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. The court may continue an emergency protection order filed to prevent domestic abuse pursuant to this subsection (1) only if the judge is unable to set a hearing on plaintiff's request for a temporary protection order on the day the complaint was filed pursuant to section 13-14-102; except that this limitation on a court's power to continue an emergency protection order shall not apply to an emergency protection order filed to protect a minor child from an unlawful sexual offense or domestic abuse. For any emergency protection order continued pursuant to the provisions of this paragraph (f), following two days' notice to the party who obtained the emergency protection order or on such shorter notice to said party as the court may prescribe, the adverse party may appear and move its dissolution or modification. The motion to dissolve or modify the emergency protection order shall be set down for hearing at the earliest possible time and shall take precedence over all matters except older matters of the same character, and the court shall determine such motions as expeditiously as the ends of justice require.

(2)

(a) A verbal emergency protection order may be issued pursuant to subsection (1) of this section only if the issuing judge finds that an imminent danger in close proximity exists to the life or health of one or more persons or that a danger exists to the life or health of the minor child in the reasonably foreseeable future.

(b) Any verbal emergency protection order shall be reduced to writing and signed by the officer or other person asserting the grounds for the order and shall include a statement of the grounds for the order asserted by the officer or person. The officer or person shall not be subject to civil liability for any statement made or act performed in good faith. The emergency protection order shall be served upon the respondent with a copy given to the protected party and filed with the county or district court as soon as practicable after issuance. Any written emergency protection order issued pursuant to this subsection (2) shall be on a standardized form prescribed by the judicial department, and a copy shall be provided to the protected person.

(3) 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 or his or her parent or an individual acting in the place of a parent who is not the respondent.

(4) If any person named in an order issued pursuant to this section has not been served personally with such order but has received actual notice of the existence and substance of such order from any person, any act in violation of such order may be deemed sufficient to subject the person named in such order to any penalty for such violation.

(5) Venue for filing a complaint pursuant to this section is proper in any county where the acts constituting unlawful sexual assault or domestic abuse that are the subject of the 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.

(6) A person failing to comply with any order of the court issued pursuant to this section shall be found in contempt of court and, in addition, may be punished as provided in section 18-6-803.5, C.R.S.

(7) At any time that the law enforcement agency having jurisdiction to enforce the emergency protection order has cause to believe that a violation of the order has occurred, it shall enforce the order. If the order is written and has not been personally served, a member of the law enforcement agency shall serve a copy of said order on the person named respondent therein. If the order is verbal, a member of the law enforcement agency shall notify the respondent of the existence and substance thereof.

(8) The availability of an emergency protection order shall not be affected by the subject of domestic abuse leaving his or her residence to avoid such abuse.

(9) The issuance of an emergency protection order shall not be considered evidence of any wrongdoing.

(10) If three emergency protection orders are issued within a one-year period involving the same parties within the same jurisdiction, the court shall summon the parties to appear before the court at a hearing to review the circumstances giving rise to such emergency protection orders.

(11) The duties of peace officers enforcing orders issued pursuant to this section 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.

 

Source: L. 2004: Entire section added, p. 549, § 3, effective July 1. L. 2010: (1)(b)(III) amended and (1)(b)(V) and (1)(b)(VI) added, (SB 10-080), ch. 78, p. 266, § 3, effective July 1.

13-14-104. Foreign protection orders.

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(1) Definitions. As used in this section, "foreign protection order" means any protection or restraining order, injunction, or other order issued for the purpose of preventing violent or threatening acts or harassment against, or contact or communication with or physical proximity to, another person, including temporary or final orders, other than child support or custody orders, issued by a civil or criminal court of another state, an Indian tribe, or a U.S. territory or commonwealth.

(2) Full faith and credit. A foreign protection order shall be accorded full faith and credit by the courts of this state as if the order were an order of this state, notwithstanding section 14-11-101, C.R.S., and article 53 of this title, if the order meets all of the following conditions:

(a) The foreign protection order was obtained after providing the person against whom the protection order was sought reasonable notice and an opportunity to be heard sufficient to protect his or her due process rights. If the foreign protection order is an ex parte injunction or order, the person against whom it was obtained shall have been given notice and an opportunity to be heard within a reasonable time after the order was issued sufficient to protect his or her due process rights.

(b) The court that issued the order had jurisdiction over the parties and over the subject matter;

(c) The order complies with section 13-14-102 (18).

(3) Process. A person entitled to protection under a foreign protection order may, but shall not be required to, file such order in the district or county court by filing with such court a certified copy of such order, which shall be entered into the central registry of protection orders created in section 18-6-803.7, C.R.S. The certified order shall be accompanied by an affidavit in which the protected person affirms to the best of his or her knowledge that the order has not been changed or modified since it was issued. There shall be no filing fee charged. It is the responsibility of the protected person to notify the court if the protection order is subsequently modified.

(4) Enforcement. Filing of the foreign protection order in the central registry or otherwise domesticating or registering the order pursuant to article 53 of this title or section 14-11-101, C.R.S., is not a prerequisite to enforcement of the foreign protection order. A peace officer shall presume the validity of, and enforce in accordance with the provisions of this article, a foreign protection order that appears to be an authentic court order that has been provided to the peace officer by any source. If the protected party does not have a copy of the foreign protection order on his or her person and the peace officer determines that a protection order exists through the central registry, the national crime information center as described in 28 U.S.C. sec. 534, or communication with appropriate authorities, the peace officer shall enforce the order. A peace officer may rely upon the statement of any person protected by a foreign protection order that it remains in effect. A peace officer who is acting in good faith when enforcing a foreign protection order shall not be civilly or criminally liable pursuant to section 18-6-803.5 (5), C.R.S.

 

Source: L. 2004: Entire section added, p. 549, § 3, effective July 1.


 

Commentary

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The Fourth Amendment to the Constitution of the United States of America states unequivocally that:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Section VII of Article II of the Bill of Rights in the Colorado Constitution states:

The people shall be secure in their persons, papers, homes and effects, from unreasonable searches and seizures; and no warrant to search any place or seize any person or things shall issue without describing the place to be searched, or the person or thing to be seized, as near as may be, nor without probable cause, supported by oath or affirmation reduced to writing.

Yet section 13-14-101 et seq. of the Colorado Revised Statutes gives any trumped-up magistrate, municipal judge, social worker, police officer, or other "concerned citizen" the right to remove a man from his home and take away his children on no more than an unsubstantiated claim that "emotional harm" might result if he were to remain in his home. Even more appalling is that such draconian orders are issued ex parte without even a pretense of allowing a defense. These laws literally scream for abuse in custody cases, contentious divorces, by those bent on revenge or vengeance. They make it simple to rob a man of everything he possesses without proof or justification. This law allows men to be torn from all the things they love most, next to life itself, without notice, without hearing, and without justice based on the false premise that men will obey a law that denies them virtually every protection they have fought and died for. Wars, including the American Revolution, have been fought over less substantial issues of freedom than are encompassed in § 13-14-102 C.R.S.

If men are forced from their homes and children, they will fight. Domestic abuse here describes governmental tyranny based on an ideology that history has shown is flawed and unworkable. And providing someone with a piece of paper as a shield against man's most primitive emotions is the height of folly. Since its inception in 2001 the Equal Justice Foundation has not received a single claim, let alone documentation, from an individual who claims the protection orders provided for here have provided significant protection against real violence. The section In Women's Own Words provides many examples of what we do hear.

Protection orders do not protect

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Conversely, experience has conclusively shown that § 13-14-101 et seq. is quite likely to increase the level of violence. We have documented numerous cases where "protection orders" were a catalyst for murder, which one hopes is the opposite of the intent of this misguided and misinformed law.

In a National Institute of Justice report NCJ 186194, Dugan and others (2001) have found that "Increases in the willingness of prosecutors' offices to take cases of protection order violation were associated with increases in the homicide of white married intimates, black unmarried intimates, and white unmarried females." Thus, enforcement of § 13-14-102 C.R.S. demonstrably leads to murder in some cases. Is homicide the intended "protection" sought?

In effect, current law incites violence rather than quells it.

However, it has oft been shown that protection orders are an effective and commonly used weapon of women seeking custody of the children and possession of the house and other family assets in a divorce. It is presently estimated that more than one-third of divorces in Colorado involve allegations of domestic abuse or violence almost exclusively as a weapon to gain advantage. And a powerful weapon it is, though sometimes the results are fatal. But so powerful a weapon are these orders that any attorney who fails to advise his client of the availability of a protection order might well be sued for malpractice.

Might honoring the rights of men and providing due process work better?

 

Suggested revisions

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This statute is so flawed, and has been revised so often by virtually every legislature since it was first introduced in 1994, that it is foolish to attempt possible revisions. There is simply no way to make ex parte protection orders based on nothing more substantial than possible emotional harm satisfy constitutional constraints such as the Fourth Amendment in the Bill of Rights.

Even the name has been changed in a vainglorious attempt to make this bile somehow palatable. But whether one calls them "protection" or "restraining" orders, they do neither. Clearly these orders, as presently embodied in statute, more often foment rather than prevent violence.

At present, despite the almost yearly revision, this statute has simply grown more draconian, lengthy, and unconstitutional with time. It rarely serves its intended purpose but makes an excellent weapon in divorce and child custody cases, for which misuse it literally begs.

The idea of a short-term emergency protection order issued ex parte under § 13-14-103 may have merit. But such temporary orders do not appear to function terribly well. Nor do they satisfy the draconian appetite of the radical social engineers who promote such laws. And, worst of all, such temporary orders do not line the pocketbooks of family law attorneys who grow rich on the human misery caused by orders issued under § 13-14-102.

If such orders as those envisioned under § 13-14-102 are needed, and one can clearly see that in some situations they can be beneficial, then both parties to the action must be given a chance to be fully heard and due process followed before such orders are imposed. But to do that would require basically repealing the entire statute and starting over, something that appears politically inexpedient at present (November 2008).

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