Colorado Springs, Colorado Domestic Abuse Restraining Orders - Domestic Violence
Temporary Restraining Orders - TRO    ***    Permanent Restraining Orders - PRO

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CRS 13-14-102. Civil restraining orders. 
        1.  Any municipal court of record, if authorized by the municipal governing body, any county court, and any district court shall have original concurrent jurisdiction to issue a temporary or permanent civil restraining 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;
                d.  To prevent stalking.

LEGAL FORMS

        a.  T*E*S*S*A fka The Center for Prevention of Domestic Violence.  Victims may call the T*E*S*S*A administration phone.
        b.  Refer to link for locally available Hardcopy Legal Forms
        c.  Refer to the link for on-line Colorado Supreme Court Litigation and Legal Forms.
        d.  The lawsuit can be handled by an attorney. 

FILING THE RESTRAINING ORDER LAWSUIT

        a.  This is an independent lawsuit - usually filed in county court.

        b.  Complaint for a permanent injunction (restraining order) may be filed in a separate county court lawsuit as indicated above in CRS 13-14-102.  If a dissolution of marriage, legal separation or paternity action has been filed, the restraining order lawsuit may be joined with the family law case, or may also be kept independent in county court.

         c.  Venue is the county where the lawsuit is filed and heard.  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.

         d.    1.  No filing fees may be assessed against petitioners seeking relief under this section; except that the court may assess a filing fee against a petitioner, if the court determines the petitioner is not seeking the restraining order as a victim of domestic abuse as defined by CRS 13-14-101 (2); domestic violence as defined by CRS 18-6-800.3 (1), stalking as defined by CRS 18-9-111, or sexual assault as defined by CRS 18-3-402, Petitioners shall be provided the necessary number of certified copies at no cost.
                2.  No fees for service of process may 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 CRS 18-6-800.3 (1), stalking as defined by CRS 18-9-111, or sexual assault as defined by CRS 18-3-402.
                3.  At the permanent restraining 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.

TEMPORARY RESTRAINING ORDER

        a.  At the time of filing, plaintiff files a motion for a temporary civil restraining order.  The motion is presented to a magistrate and decided ex parte, which means without notice to or an opportunity for the defendant to be heard.  The magistrate makes the determination of whether to issue a temporary restraining order upon the basis of facts alleged in the complaint.

        b.  A temporary civil restraining 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 restraining 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 restraining 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 restraining order.

CITATION TO APPEAR

                a.  With the temporary restraining order, the court issues 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 restraining order should not be made permanent.  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 restraining order and such citation, it shall not be necessary to re-serve the defendant to make the restraining order permanent.

                b.  A copy of the complaint together with a copy of the temporary civil restraining order and a copy of the citation shall be served upon the defendant and in accordance with the rules for service of process as County Court C.R.Civ.P. 304 or District Court C.R.Civ.P. 4.  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 restraining order previously entered by the court shall be made permanent without further notice or service upon the defendant.

PERSONAL EFFECTS PENDING FINAL ORDERS

        Any person against whom a temporary restraining order is issued pursuant to this section, which temporary restraining 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 restraining 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.  A very short amount of time is permitted - the restrained person should make certain adequate transportation and manpower is available to move the personal effects quickly.

FINAL ORDERS HEARING

        a.  The return date of the citation shall be set not more than fourteen days after the issuance of the temporary civil restraining order and citation. If the petitioner is unable to serve the defendant in that period, the court shall extend the temporary restraining 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 additional continuances as needed if the petitioner has still been unable to serve the defendant.

        b.  If the judge or magistrate, after examining the record and the evidence, for good cause shown may continue the temporary restraining 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. 

        c.  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.

        d.  If the defendant fails to appear at the return date and the petition is for a restraining order to prevent domestic abuse, the court shall order the terms of the temporary restraining order to be made permanent without further notice or service upon the defendant.

        e.  At the time a civil restraining 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 restraining orders of any court addressing in whole or in part the subject matter of the requested civil restraining order.

        f.  At final orders hearing, the judge or magistrate (without a jury) will accept testimony, introduction of exhibits and entertain closing arguments by each party.  This is a full evidentiary hearing.  If the Court finds that the defendant has committed acts constituting grounds for issuance of a civil restraining order and that unless restrained will continue to commit such acts, the judge or magistrate shall order the temporary civil restraining order to be made permanent or order a permanent civil restraining order with different provisions from the temporary civil restraining order. The judge or magistrate shall inform said defendant that a violation of the civil restraining order shall constitute a criminal offense pursuant to section CRS 18-6-803.5, or shall constitute contempt of court and subject the defendant to such punishment as may be provided by law.

PERMANENT ORDERS

        The court may enter restraining orders as court deems necessary for the protection of person which 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.     1.  Awarding temporary care and control of any minor children of either party involved for a period of not more than one hundred twenty days
                2.  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.
                3.  The standard for the award of temporary care and control shall be in accordance with CRS 14-10-124 (best interests of the child).
                4.  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", CRS Title 14, article 13.
                5.  Any order regarding exclusion from the family home or temporary care of control of children shall terminate whenever a subsequent order regarding the same subject matter is granted pursuant to the "Uniform Dissolution of Marriage Act", CRS Title 14, Article 10, or the "Uniform Child-custody Jurisdiction and Enforcement Act", CRS Title 14, Article 13, or the "Colorado Children's Code", CRS Title 19, Article 4 (paternity or legal parentage).

        f.  Such other relief as the court deems appropriate.

MUTUAL RESTRAINING ORDERS

        A court shall not grant a mutual restraining order to prevent domestic abuse for the protection of opposing parties unless each party has met his or her statutory burden of proof and the court makes separate and sufficient findings of fact to support the issuance of the mutual restraining order to prevent domestic abuse for the protection of opposing parties. No party may waive these requirements.

SERVICE OF RESTRAINING ORDERS

        Each party is provided a copy of any order issued pursuant to this section, and a copy shall be delivered to any law enforcement agency having jurisdiction to enforce said order.

MODIFICATION OR DISMISSAL OF RESTRAINING ORDER

        a.  Petitioner (protected person) may move for modification of the terms or duration of the restraining order, or may move to dismiss the restraining order entirely.

        b.     1.  Respondent (restrained person) may also move for modification of the terms or duration of the restraining order, or may move to dismiss the restraining order entirely.  However, once such a motion has been filed, the restrained person may not again file a motion until four (4) years has elapsed.  CAVEAT - See ¶2.
                2.  If Respondent (restrained person) has been convicted of any felony or any crime defined as domestic violence pursuant to CRS 18-6-800.3, then the restraining order shall remain permanent and shall not be dismissed by the court.
                3.  Any motion to modify or vacate a permanent restraining order must be accompanied by the results from the Colorado bureau of investigation of a fingerprint-based criminal history record check.  The fingerprint-based criminal history record check shall include arrests, conviction records, any criminal dispositions reflected in the Colorado bureau of investigation and federal bureau of investigation records concerning any felony record or any misdemeanor record, the underlying factual basis of which has been found by a court on the record to include an act of domestic violence, fingerprint processing by the federal bureau of investigation and the Colorado bureau of investigation, and a query of the restraining order registry. The moving party shall be responsible for providing certified copies of any criminal dispositions that are not reflected in the Colorado bureau of investigation or federal bureau of investigation records and any other dispositions that are unknown. The moving party shall be responsible for supplying fingerprints to the Colorado bureau of investigation and for obtaining the fingerprint-based criminal history record check. The moving party shall also be responsible for the cost of the fingerprint-based criminal history record check.

        c.  The issuing court shall retain jurisdiction to enforce, modify, or dismiss a temporary or permanent restraining order.

        d.  If a motion to modify or dismiss is filed, a copy of the motion and notice of the hearing on the motion must be personally filed upon the opposing party.

        e.  The moving party bears 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 restraining 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.

        f.  Relevant factors in court's determination of motion:
                1.  Whether the restrained party has complied with the terms of the restraining order;
                2.  Whether the restrained party has met the conditions associated with the restraining order, if any;
                3.  Whether the restrained party has been ordered to participate in and complete a domestic violence treatment program provided by an entity approved pursuant to CRS 16-11.8-103(4)(b)(III)(C), and whether the restrained party has completed the program;
                4.  Whether the restrained party has voluntarily participated in any domestic violence treatment program or other counseling addressing domestic violence or anger management issues;
                5.  The time that has lapsed since the restraining order was issued;
                6.  When the last incident of abuse or threat of harm occurred or other relevant information concerning the safety and protection of the protected person;
                7.  Whether, since the issuance of the restraining 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 CRS 18-6-800.3 (1), other than the original offense, if any, that formed the basis for the issuance of the restraining order;
                8.  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
                9.  The circumstances of the parties, including the relative proximity of the parties' residences and work places and whether the parties have minor children together.

        g.  Modification or dismissal provisions of the statute apply only to restraining orders entered on or after July 1, 1999.

        If your spouse or significant other has filed for a county court restraining order, a temporary injunction has likely entered.  By law, the return date must be set no later than 14 days after the civil temporary restraining order and citation.  In El Paso County, final orders hearing on permanent injunction is scheduled approximately 10 days after the initial filing.  If the parties are both present and each agree to continuance, upon good cause shown the court may continue the temporary restraining order and final orders hearing for a period not to exceed 120 days.  Absent the other party's consent, upon good cause shown each party (including defendant) may request one continuance up to 14 days.  

        If plaintiff or counsel will not agree to continuance, the defendant must litigate on a very short notice fuse.  Insufficient time exists for adequate hearing preparation - counsel must absolutely scramble.  To prepare for final orders hearing, need for priority assignment to a PRO case would be common.  That means counsel must have the ability to devote attention to the PRO case to the exclusion of other clients' cases.  Depending upon an attorney's caseload and court calendar, that may or may not be possible.  If the attorney's trial calendar permits, you will make your attorney, private investigator and process server very busy very quickly.  I count on lack of consent to continuance and prepare for hearing as scheduled or decline the case.  

        Regarding an overview of trial preparation, see attorney's role and assistance.

        No Criminal Charges Pending.  If no criminal charges are pending, the defendant may testify at the PRO hearing, however that carries the danger that statements may be used against defendant if criminal charges are later initiated.  Whether to testify or not is defendant's decision.  Absent current criminal charges, I would use testimony of defense witnesses.

        Criminal Charges Pending.  If the defendant has criminal charges pending, 
        1.  I advise my client not to testify at the civil injunction hearing.  A transcript of testimony would be available for use against the defendant in the criminal trial.  Absent testimony from the defendant, chances are high that the restraining order will enter.  That may seem unfair, but it's a reality.  Whether to testify or not is defendant's decision.  
        2.  I may, but am reluctant to call defense witnesses at PRO hearing.  The trial date is so quick in a PRO hearing that adequate time for preparation is not available.  If the witness' later recalls a different fact, event or circumstance which may be offered at the criminal trial, but was not given in testimony at the PRO hearing, that testimony or evidence would be subject to impeachment at the criminal trial.  Typically after initial investigation, I would confer with my client regarding the risks and this particular trial tactical decision.
        3.  The primary purpose of representation at the restraining order hearing is an opportunity to cross examine the alleged victim under oath, and obtain statements for use in the criminal trial.  A transcript of the PRO hearing will be ordered and can be used for impeachment of the alleged victim at the criminal trial.
        4.  If a defendant later obtains a not guilty verdict or dismissal of criminal charges within six (6) months of the permanent injunction, defendant may file an action to set aside the injunction alleging fraud or misrepresentation by the victim.  The motion would be based upon variance of testimony between the proceedings.  My experience is that such motions for relief are futile.
        5.  Under domestic violence criminal court "fast track" procedures, the criminal trial will be set 60 days from the advisement, which is usually held the next business day after the alleged offense.  If plaintiff will agree to a continuance of 120 days in the civil suit, criminal jury trial will likely be concluded.  
                a.  If a not guilty verdict has been entered, the civil court can take judicial notice of the not guilty verdict, however the burdens of proof are different.
                b.  If a not guilty verdict has been entered, plaintiff may "lose steam" and dismiss the civil injunction.
                c.  Transcript from the criminal trial could be used for impeachment in the civil case.

        It has been my experience that if the court is to error, it will be on the side of caution with entry of a permanent restraining order (PRO).  While unfavorable to any defendant, that makes common sense.  If a PRO were denied and the alleged victim were to be shortly thereafter, seriously injured or killed, that would subject the court to a high degree of publicity.  Put simply, this is an uphill battle.

        Ok, the hearing is over & the order entered.  You're not a happy camper & don't agree with the magistrate's ruling.  What next?  It depends upon whether the order was entered by a county court magistrate or a district court magistrate.  Most domestic restraining orders are brought in county court under the domestic abuse restraining order statute and will have a county court magistrate presiding.  If the restraining order is initiated within and as a part of a divorce or paternity action, a district court magistrate may likely enter orders.  Similarly, nuisance injunctions are frequently brought in district court and a district court magistrate would preside.

REVIEW OF COUNTY COURT MAGISTRATE ORDERS OR JUDGMENTS 
C.R.M. 9
generally relevant to domestic abuse restraining orders entered under domestic abuse statutory authority

        (a) An order or judgment of a county court magistrate shall be the order or judgment of the county or small claims court.

County Court New Trials; Amendment of Judgments - C.R.Civ.P. 359 
Refer to the above link
Filing time limit - 15 days from date of order

Relief from Judgment or Order - C.R.Civ.P. 360 
Refer to the above link
(a) Filing time limit clerical mistakes - may be corrected at any time
(b) Filing time limit mistake; inadvertence; surprise; excusable neglect; fraud; etc. - 
Reasonable time - not to exceed 6 months

Appeal from County Court to District Court - C.R.Civ.P. 411 
Refer to the above link
Filing time limit - 15 days from date of order

Bear In Mind
Harmless Error - C.R.Civ.P. 361

REVIEW
DISTRICT COURT MAGISTRATE ORDERS OR JUDGMENTS  -  C.R.M. 7 
Refer to the above link
generally relevant to restraining orders entered in divorce or paternity actions

        Pursuant to Colorado law, a central registry identifying domestic abusers is maintained by the Colorado Bureau of Investigation (CBI) in Denver.  When a domestic violence injunction (restraining order) has entered or a domestic violence criminal conviction, a person is identified and tagged with the case number and location.  In a domestic disturbance call, once the parties are identified law enforcement officers immediately check the CBI central registry.  If your name pops up, guess who is likely to be charged in a new investigation?  Same song, second verse except the jury potentially hearing about a prior.  The Department of Human Services (DHS - formerly DSS) maintains a statewide identification central registry of all reported child abuse.  These records have major impact upon a person's future, not only pertaining to potential future criminal charges, but possibly affecting education or employment opportunities.  Jury trial is likely a criminal defendant's only alternative to pleading guilty or accepting an offer which leaves the person vulnerable.

        If a person is convicted of a crime of domestic violence, or if a civil domestic abuse restraining order (injunction) enters against a person, firearm or ammunition ownership or possession becomes a thing of the past.  Federal law prohibits.  Also, with a domestic violence conviction or a domestic abuse restraining order, in addition to possession or ownership, attempting to purchase a firearm or ammunition is a federal felony.  See federal statutes 18 U.S.C.A. §§ 921, 922 et. seq.  If firearms or ammunition are required for present or future employment, say good-bye.  At present it appears to this attorney that a deferred sentence to a domestic violence crime with subsequent dismissal does not impact purchase of firearms, firearm ownership or firearm possession.  Check with a gun dealer or the local sheriff's office.

        Forty-six-month sentence for possession of a firearm while under a domestic violence restraining order upheld. United States v. Baker, 197 F.3d 211, 217 (6th Cir. 1999)

        Upon entry of a domestic abuse restraining order, if a person in employed of seeks employment in an occupation which requires firearms, such a law enforcement, a new career choice would be in order.  That would also apply to any field in which the employee is a care giver and could potentially apply to any employment occupation wherein a background check is conducted.

        Finally, it would not be uncommon for a person to run a background check on a prospective new mate.  Identification as a domestic abuser and an active domestic abuse restraining order would not be the first choice for character reference.

District Court C.R.Civ.P. 65
District Court restraining orders enter primarily to
abate a nuisance or provide equitable relief

1.         Plaintiff files suit alleging defendant has violated a restrictive covenant on residential real property, and that immediate and irreparable injury, loss, or damage will result to the plaintiff unless a restraining order enters.

2.         Security (bond) may be required

3.         A temporary restraining order may enter before final hearing, valid for ten days only, and upon application may be renewed for an additional ten days.

4.         At hearing, if the court finds that the defendant has committed acts identified above and that unless restrained and enjoined will continue to engage in such acts, the court will enter a permanent restraining order, which may prohibit an action or make an action mandatory.

5.         Every order granting an injunction and every restraining order must set forth the reasons for its issuance; must be specific in terms and must describe in reasonable detail the restrained or mandatory act(s).

6.         C.R.Civ.P. 65 does not apply to suits for dissolution of marriage, legal separation, maintenance, child support, or custody of minors. In such suits, the court may make prohibitive or mandatory orders, without notice or bond, as may be just.

        If you are the defendant in a restraining order domestic abuse restraining order case and are successful defending, or if the case is dismissed for any reason, it would be advisable to move to seal the civil lawsuit records.  If you have questions, refer to the link.

        The court previously decided legal custody (decision making), physical child custody (where a child lived) and visitation ( the schedule upon which the non-custodial parent was entitled to see a child) based upon the best interest of the children.  In effort to eliminate the idea that children are items to be awarded in a divorce, terminology has changed.  Custody and visitation no longer exist in Colorado except as is required for tax exemptions.  CRS 14-10-131.7

        The court in a restraining order case does not have jurisdiction (power) to address the issues of allocation of parental responsibilities and parenting time; the issues may not be raised in this type of a proceeding.  For an order to enter regarding allocation or parental responsibilities or parenting time, a dissolution of marriage, legal separation or paternity case must be filed.  Refer to links for information.

        Because decisions must be made quickly regarding children, the court in a restraining order case does have jurisdiction (power) to and will address the issue of children's temporary care and control for a period of not more than 120 days.  Refer to the link.  This allows sufficient time to file a dissolution of marriage, legal separation or paternity case.

        The court in a restraining order case does not have jurisdiction (power) to address the issue of child support.  the issue may not be raised in this type of a proceeding.  For a child support order to enter, a dissolution of marriage, legal separation or paternity case must be filed.  Refer to links for information.

        The court in a restraining order case does not have jurisdiction (power) to address the issue of family support.

        If the parties are married, either party may file for dissolution of marriage, legal separation and seek spousal maintenance in that case.

        If the parties are not married, neither may file any lawsuit for support from the other - aka "palimony."  Spousal maintenance does not exist in Colorado unless the parties were married by common law marriage or statutory marriage (judge or clergy ceremony).  "Palimony" or maintenance support between non married cohabitating partners is therefore unavailable in a paternity action.  If the parties cohabitated, there is a legal theory for partner support based in contract law.  The landmark case is Marvin v. Marvin, 18 Cal.3d 660 (1976).  While the actor Lee Marvin's case has been cited in two Colorado cases - Salzman v. Bachbrach, 996 P.2d 1263, 1267-1268 (Colo. 2000) (see property above) and In re Estate of Lewis, 652 P.2d 1106, 1108 (Colo. App. 1982), "palimony" has not been adopted in Colorado to this attorney's knowledge.

PROPERTY AND RESIDENCE
E.T. LEAVE HOME
( phone home?  go directly to jail and do not pass go or collect $200 )

        The court in a restraining order case or paternity case does have jurisdiction (power) to and will address the issue of one party vacating a common residence.  The restrained person must vacate the common residence immediately upon service of the temporary restraining order.  The restrained person, when accompanied by a law enforcement officer, may remove a few necessary personal effects necessary to survive pending final orders hearing.  Refer to link for information.

Property - Married Persons

        a.  Real Property.  If the parties are married, either party may file for dissolution of marriage, legal separation and in that case either party may request an order for exclusive possession of the family residence at temporary orders hearing and may request sale or other disposition at final orders hearing.  One party may be required to wait until final orders hearing to divest the other party of possession.  A mandatory waiting period of 90 days exists in dissolution of marriage; finalization may take several months.  If a divorce is coming, the excluded party is well advised to commence the dissolution of marriage proceedings and timely pursue the case to final orders.

        b.  Personal property is similar.  Usage of some may personal property may be obtained at temporary orders hearing in a dissolution of marriage, but full division will await final orders hearing.

Property - Unmarried Persons

        Property is a totally different circumstance if the parties are not married.

        a.  Jurisdiction
                1.  The county court in a domestic abuse restraining order action does not have jurisdiction to order possession or division of real property or personal property.
                2.  The juvenile court in a paternity action does not have jurisdiction to order possession or division of real property or personal property.

        b.  Shared Residence
                1.  Residence owned by party in possession.  If the residence is owned by the party in possession, no dispute exists with respect to possession.  Possession follows ownership.
                2.  Residence owned by excluded party.  If the restrained person owns the residence and the protected person has no ownership claim (shack job), the protected person may initiate a separate forcible entry and detainer lawsuit pursuant to CRS 13-40-101, et. seq..  However, the restrained 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 restraining order, and the restraining order is modified accordingly. CRS 13-14-102(8)(c)  Put another way - if the restrained person has sole ownership of the residence, the protected person may have exclusive use of the home.  The restrained owner is not permitted back into his / her home until an FED order has entered and the temporary or permanent restraining order has been modified.  What a bummer.
                3.  Excluded party made contributions toward residence.  If the excluded party without ownership interest (title) contributed to the purchase or debt amortization of the property and claims some entitlement and the parties are unable to agree upon division, a separate lawsuit should be brought in District Court - unjust enrichment, joint venture or analogous to dissolution of a partnership seeking distribution of partnership assets.  This type of lawsuit is founded in contract law, and the excluded party must overcome a foreseeable argument that contributions constituted rent or a completed gift.
                4.  Jointly owned residence.  Similar to ¶(b)(3), if the parties are unable to agree upon division, a separate lawsuit should be brought in District Court - unjust enrichment, joint venture or analogous to dissolution of a partnership seeking distribution of partnership assets.  This type of lawsuit is founded in contract law.

        c.  Personal Property, Including Motor Vehicles
                1.  Separate property divided.  If each party has received his / her personal property, no dispute exists with respect to possession.  Possession follows ownership.
                2.  Separate property retained by other party.  If the personal property has not been divided:
                        a.  Communications
                                1.  The restrained person may not contact the protected person for any reason, including property distribution.  Counsel may do so.
                                2.  If the protected person contacts the restrained person for any reason, including property distribution, the protected person risks invalidating the restraining order or creating a defense to contempt or prosecution.  Counsel may contact the restrained person.
                        b.  If the other party is unwilling to make distribution of personal property claimed by the other, the person claiming ownership may initiate a separate replevin or trover lawsuit pursuant to C.R.Civ.P. 104, 404, CRS 13-6-403, CRS 13-16-106, CRS 13-80-101.  Trover for a horse.  However, the restrained person shall not be entitled to possession of the property until a the sheriff has executed upon a valid replevin order.  Put another way - if one party will not give the separately owned personal to the rightful owner, separate lawsuit is required to recover the disputed property or money damages.  What messes people can create.
                3.  Non-owning party made contributions toward personal property.  If the party without ownership interest (title) or without possession of untitled property contributed to the purchase or debt amortization of the property and claims some entitlement, and if the parties are unable to agree upon division, a separate lawsuit should be brought in District Court - unjust enrichment, joint venture or analogous to dissolution of a partnership seeking distribution of partnership assets.  This type of lawsuit is founded in contract law, and the non-owning or non-possessing party must overcome a foreseeable argument that contributions constituted rent or a completed gift.
                4.  Jointly owned personal property.  Similar to ¶(c)(3), if the parties are unable to agree upon division, a separate lawsuit should be brought in District Court - unjust enrichment, joint venture or analogous to dissolution of a partnership seeking distribution of partnership assets.  This type of lawsuit is founded in contract law.

                a.  If the parties cohabitated and personal property has not been divided, do so immediately. 
                b.  When you make division of your personal property, divide as much as possible, and make one move.  Disagreements are caused when one of you continually contacts the other requesting minor items of personal property. Identify those items on which you disagree; your attorney will negotiate or a court hearing may be necessary.  The goal is to identify & minimize those items which are contested.  Don't sweat the small stuff; be flexible without giving up important matters.  If you take petty personal property issues to hearing in a separate civil case, a judge could easily order all property to one party or the other, or could order property sold at public auction and division of proceeds.  Remember, attorney's fees and litigation costs may exceed the value of the property.

        d.  Unmarried Cohabitation.  It is this attorney's understanding absent common law marriage or statutory marriage (judge or clergy ceremony) or contribution and unjust enrichment, neither party acquires any right in or to property of the other unless by contract (express or implied) which would be scrutinized as under standards of Salzman v. Bachbrach, supra.  Colorado does not have "marital property or community property" law with reference to mere cohabitation by unmarried persons.

See Salzman v. Bachbrach, 996 P.2d 1263 (Colo. 2000)
        Where past, present, and future sexual relations were the sole consideration for the original delivery of a thing of value, the contract mirrors a contract for prostitution which is immoral, unlawful and void.  Neither law nor equity will aid either to enforce, revoke or rescind.  Id at 1266 - 1267.
        Non-married cohabitating couples may legally contract with each other so long as sexual relations are merely incidental to the agreement.  Couples may ask a court for assistance, in law or in equity, to enforce such agreements.  Id at 1267 
        Cohabitation and sexual relations alone do not suspend contract and equity principles. We do caution, however, that mere cohabitation does not trigger any marital rights.  A court should not decline to provide relief to parties in dispute merely because their dispute arose in relationship to cohabitation. Rather, the court should determine as with any other parties whether general contract laws and equitable rules apply.  Where sexual relations with the other cohabitating partner are not the sole motivation, cohabitation does not bar suit in equity.  Id at 1268 - 1269

        e.  Untangle Co-Mingled Finances.  If you co-mingled your finances, advice in divorce cases still stands - close all joint accounts and separate your finances as best as possible without separate lawsuit court intervention.

        1.  Close all joint charge accounts immediately. Notify creditors by certified mail that you will no longer be responsible for future debt incurred by the other parent.  Send creditors one-half of the charge card of the parent who will no longer have charge privileges, or close the account entirely if need be.  This includes utilities and checking accounts as the other parent may write bad checks.  Closing joint liabilities is simply good business and eliminates possible disagreement later.  It may be uncomfortable to discuss this with the other parent immediately.  You may believe excessive charging to be out of character for the other parent.  You may fear the finality this seems to bring.  Do it anyway & do it now - attorneys see this problem frequently.  Close all joint accounts immediately. ...twice written intentionally.
        2.  Close all joint savings accounts, and divide the proceeds fairly.  If you anticipate problems, transfer the proceeds to a savings account in your name only, and hold (not spend) the proceeds until final disposition can be made.  It is easier to give the money to the other parent than to ask for it back.  This office recommends immediately after you have withdrawn the money, you convert the new savings account to an account where withdrawal is possible only upon the signature of both you and the other parent; check with your bank for availability.  Protect your savings.

        f.  Physical Separation.  If cohabitating, there is no pleasant or enjoyable way to physically separate. If necessary, either party may hire an off duty police officer to be present and keep the peace while household goods are being physically moved. You may attempt to hire an off duty law enforcement officer by calling the Colorado Springs Police Department or the El Paso County Sheriff's Office.  No officer will participate in deciding who may take or keep individual items, the officer will merely keep the peace. Plan on $50+ minimum. To provide for an efficient and rapid move, make certain sufficient manpower, truck space, dollies, pads, etc. have been arranged in advance.

        g.  Common Sense.  Attorney's fees and costs may exceed the value of the property.  Also, in the event of property litigation, dispute between the parties is not over.  Peace is benefit in and of itself.  Sometimes it is appropriate to write off an asset or loss, and chalk it up as a bad experience.  Bear in mind, you chose to enter into the relationship.

1. Such video or photographs are not unlawful so long as taken by and between consenting adults for their own use and not disseminated to third persons without consent.  If they exist and you are separating, destroy the images in the presence of each other so you will both be satisfied of the destruction.

2. If either party is making threats of prosecution or civil litigation:
        a. The first issue is whether from the camera angles it is apparent the photographs were taken with the camera in plain view, not hidden.  The image will evidence whether the photo or video shot was surreptitiously taken, or taken in full view with knowledge and consent of the subject.  The image itself will usually be evidence the subject was a willing participant, and that the image(s) were taken at his or her request or with consent.
        b. 1.  Do not show the images to any third person, or post on the internet.
            2.  If it is evident from the images that they were created with equipment in plain view, the originals or a copy should be maintained in an evidence locker of an attorney or a private investigator retained by an attorney.
            3.  If it is evident from the images that they were created with equipment surreptitiously placed (a "hidden camera"), unless you plan to make full disclosure or charges have been filed and the images have been previously seized, neither advise me of the existence of such images nor provide the evidence to me.  Refer to the Client Warning Notice which applies to all attorneys.  Additionally, any advice regarding evidence of a crime this would create an evidentiary ethical dilemma for any attorney - "the smoking gun" as it were.
        c. Criminal charges may be filed if such pictures, images or video are taken without the knowledge or consent of the subject.  unlawful sexual contact - sex offense - registered sex offender - serious.  Refer to links for information.
        d.  Make no statements to any third person, including but not limited to law enforcement agents. If relevant, consult counsel immediately.
        e.  The District Attorney Office does prosecute cases of this nature.

        At the permanent restraining 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.  CRS 13-14-102(21)(c)

        Where the above statute provides for Petitioner's recovery, I would argue equal protection requires the court to consider attorney's fees and costs incurred by a respondent in the event a restraining order is denied.

        In addition to the frivolous suit statute (13-17-102. attorney fees and 13-17-103. Procedure for determining reasonable fee - judicial discretion).  If awarded, the court must make findings as to the amount and reasonableness of attorney's fees and costs.

COUNSELING AND THERAPY

        In every case where children are involved, this attorney recommends you consult a psychiatrist, psychologist or licensed social worker to learn more about what impact your separation will have on the children, and how to effectively cope.  Advance knowledge will likely assist you in neutralizing negative circumstances and minimizing injury to your children.

        Divorce or breakup of a significant relationship is a major life event, as is death of a loved one. Do not feel stigmatized by seeking professional advice.  The fact you are inquiring into restraining orders or other legal remedies indicates your marriage or relationship is in serous trouble, and perhaps your entire family structure.  Consulting a mental health professional is quite likely the best course of action you could take at this point.  If the children are exhibiting trauma or unusual behavior, by all means immediately consult a mental health professional.   As a governmentally subsidized agency, Pikes Peak Mental Heath bills fees on a sliding scale based upon income. Many private therapists or counselors are also located in town.  You may not desire extended therapy, however don't hesitate to at least touch base, regardless of whether or not you have children.

        It is advisable for everyone who undergoes breakup of a marriage or other significant relationship to attend a recovery workshop.  Attendance may likely assist you with grief and recovery.  They are free or inexpensive - all it takes is one night a week for about 8 weeks.  Who knows, even if initially you don't think it is worthwhile, you may learn something.

        Refer to:
        Resources - Counseling page for a summary list of available local resources
        DV - Classes page for a summary list of state certified domestic violence counseling programs.

        T*E*S*S*A fka The Center for Prevention of Domestic Violence has residential safe-housing available in cases of physical or emotional abuse if the facts warrant.  Occupational and therapy counseling is also available plus information on other agencies.  For more information:  Safe House & Women's Resources

        Where relevant, I utilize the services of independent professionals.  Rates of independent providers of professional services change periodically and billings are not controlled by counsel.

        If retained by counsel as an agent of the attorney, such independent service providers are bound by the attorney-client privilege.  If retained privately by the client, no such agency or confidentiality exists.

        Given the rapid settings of final order hearing, the attorney's role in domestic violence cases is trial attorney, not negotiator.  To learn the facts from the client's viewpoint, the attorney will discuss the facts of your case with you.  The factual interview frequently takes sufficient time to learn not only the events alleged, but the relationship history.  To learn of evidence of which you may not be aware, I will investigate your case to the extent possible prior to final hearing

        Your case will be investigated and prepared for trial. During investigation in the criminal case:
        a.  Counsel looks for evidence
                1.    exculpatory.  tends to negate commission of the alleged act(s)
                2.    inculpatory.   tends to establish or support commission of the alleged act(s)
        b.  Counsel uses a private investigator to uncover facts and potential testimony - both favorable and unfavorable.  
        c.  Being detached and uninvolved, counsel can then sift through the information with an unconvoluted and clear mind looking for patterns, defenses or persuasive arguments and devise a strategy for hearing.

        Plaintiff should not expect defendant to stipulate to entry of a restraining order or fail to appear.
        Defendant should not expect plaintiff to stipulate to dismissal or fail to appear.

        Overview of trial preparation.
        a.  Counsel will interview the client to ascertain facts, evidence and potential witnesses.  
        b.  Services of a private investigator will be utilized to interview witnesses, including opposing party.
        c.  Subpoena will be served upon any favorable witness to assure appearance at hearing.
        c.  Subpoena duces tecum will be served upon law enforcement 911 & dispatch for tapes and records.
        e.  Litigation history of plaintiff and defendant will be checked for other relevant cases.
        f.  Depending upon whether counsel represents plaintiff or defendant:
                1.  If there is reason to believe plaintiff has previously claimed to be an alleged victim and has initiated criminal charges against a third person, subpoena duces tecum may be served upon the clerk of court in the relevant county for records.  It is otherwise impossible to ascertain an alleged victim in criminal cases.
                2.  If defendant has a prior history of domestic abuse, restraining orders or domestic violence criminal conviction, such may be admissible as common plan, scheme, or design, lack of mistake, intent, or other theory.
        g.  Counsel will prepare exhibits for introduction into evidence, direct and cross examination of all witnesses, and closing argument, then litigate.

        At the time of the first visit, a prospective client will be quoted attorney's fees and estimated costs. The quote will be honored for a period of seven (7) days, after which it is subject to change without notice if this office has not been retained.  Attorney is a sole practitioner with need to manage his caseload.  Pending proposed client acceptance and payment, retainer agreement proposals are subject to withdrawal.  Attorney reserves the right to decline any case.
 
        In most circumstances, attorney initially makes an option offer of 1.) billing to be upon hourly fees, or in the alternative, 2.) quote of a flat fee through trial court final hearing.  ELECTION. Offered fee options will be up to the client, however client's initial election will be final.
 
        Included in attorney's primary website is a web page devoted to clear definition & understanding of free first consultation, fees and costs, retainer agreement and terms of representation.  Additional information regarding fees & costs may be found via the links following potential quotes.

        In the event of reconciliation and dismissal by client or opposing party, earned fees and expended costs will not be refunded.  Bear in mind when one party opens Pandora's Box, this may trigger the other party filing for a reciprocal restraining order.  Domestic abuse litigation (even mere allegations) can have significant impact on the ability to secure or maintain employment, as well as possession, ownership or purchase of firearms - hunting.  This type of litigation should not be undertaken lightly or based upon anger or emotion - it is a means of last resort.  If after considering the above, you need assistance - please feel free to call or email.

        If possession of real property is in issue, I would likely refer a client to a landlord - tenant attorney for a forcible entry and detainer.  Although as a rule I do not include general civil matters in my practice, if requested by the client I would consider representation in a replevin action or contract * equitable unjust enrichment * partnership dissolution action upon an hourly fee structure.