Fighting a Domestic Violence Order
Upon arrest for domestic assault, a 72-hour restraining order is automatically issued. This must be addressed promptly to prevent a chain of events that can separate you from your children or lead to additional criminal charges.
Even if you are cleared of domestic violence assault charges, the alleged victim can seek a permanent restraining order. You can fight this. The Colorado Springs criminal defense lawyers of the Gasper Law Group handle all aspects of domestic violence allegations. Contact us immediately for a free consultation.
The Permanent Restraining Order – A Dangerous Path
The temporary restraining order requires that you be removed from your home for 72 hours. During this time, you cannot have contact with the victim or your kids, including contact via third party. The victim can file in civil court to continue the temporary order. A permanent restraining order may be granted for six months, a year or more.
Rather than protecting the victim from violence, restraining orders are often used as a weapon against the alleged abuser:
- You are kicked out of your home and cut off from your family. Then the domestic violence allegation and protective order is used for leverage in divorce or child custody proceedings.
- The permanent restraining order sets you up for criminal charges of violation of a restraining order Restraining Order Violations for harassment, stalking, threats or any contact at all. Accusations are made, you are hauled off to jail again and the “victim” has more fodder for family court.
For this reason, it is critical to challenge the permanent order. The sooner you obtain legal counsel, the better your lawyer will be prepared to make your case.
A hearing will be set, usually within a week, to determine to continue the temporary no-contact order. Both sides have an opportunity to present arguments to the judge. While the temporary order is automatic, the court is more cautious with a permanent protection order because of what’s at stake.
The Gasper Law Group works to show that you are no threat to the victim – no prior assaults, calls to police or pattern of violence. We will challenge the victim’s characterization of events and challenge the credibility of any witnesses called. We also present any evidence that the victim’s motivation is getting the upper hand in a family court matter.
Additional Resources on Restraining Orders in Colorado
What is domestic abuse?
Colorado law defines domestic abuse as follows: “any act, attempted act, or threatened act of violence, stalking, harassment, or coercion 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.”*1
A sexual relationship may be one factor in assessing whether a relationship is an “intimate relationship,” but it is not necessary for the relationship to of a sexual nature in order to be classified as an intimate relationship.
“Coercion,” means compelling a person by force, or threat of force, or intimidation to do something the person has a right to refuse or forcing a person to abstain, from something they have a right to do.
“Domestic Abuse,” may also include any act, attempted act, or threatened act of violence against a minor children of either of the parties; or a pet belonging to a person or a minor child.
Examples of conduct that could qualify as domestic abuse: *2
- Name-calling/Directed use of Obscenities
- Threatening or harassing phone calls
- Threat to injure self
- Threat to injure others
- Threat of Physical or Sexual Abuse to Children
- Threat by Displaying or Pointing Weapon, or by access to Weapon
- Threat by cruelty to animals
- Threat by following
- Threat by damaging property
- Throwing things
- Shoving or Pushing
- Forcing Sexual Contact
- Physically abusing children in household
- Sexually abusing children in household
- Slapping (with open hand)
- Punching (with closed fist)
- Using Weapon
- Choking or strangling
- Forcing Other to stay in closet, room, homes, or other locations
What is a Protection Order?
Colorado law defines a Protection Order as follows. “An order that prohibits the restrained person from contacting, harassing, injuring, intimidating, molesting, threatening, touching, stalking, or sexually assaulting or abusing any protected person or from entering or remaining on the premises, or from coming within a specified distance of a protected person or premises, or from taking, transferring, concealing, harming, disposing of or threatening harm to an animal owned, possessed, leased, kept, or held by a protected person, 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. *3
What types of Protection Orders are available in Colorado and how long are they in force?
Temporary (ex parte) Protection Orders
A Judge can and should issue a Temporary Protection Order if he or she believes that the person requesting the Order is in immediate danger. Ex Parte means that the order can be issued without the alleged abuser being notified or being present. The Temporary Order is designed to protect the person during the time between the request and the hearing. The hearing is usually set within two weeks. It should be noted that the Order is not enforceable against the abuser until he has been served notice.
Permanent Protection Order
When the abuser has been served notice of the Temporary Protection Order and the date and time of the hearing, both parties appear before the Judge. The Judge has a couple of options at this stage. *4
Judge can continue the Temporary Protection Order for up to 1 year. This will only happen if both parties appear and both agree to the continuance.
Judge can issue a Permanent Protection Order if the Judge finds that the abuser has committed domestic violence and that without the order will continue to do so.
Emergency Protection Orders
This is a protection order requested by law enforcement when they believe that an adult or minor child is in immediate and present danger of domestic abuse. *5
Usually only in effect for a few days and is typically issued when courts are closed or when a person has filed for a Temporary Ex Parte Protection Order but there is no Judge available to hold a hearing that day.
What can a Judge order in a Protection Order?*6
- Prohibit the abuser from hitting, threatening, or in any way harming you or your children
- Prohibit abuser from contacting you or your children and order him/her to stay away from you and your children
- Order the abuser to move out of the home
- Prohibit abuser from returning to the home
- Prohibit abuser from interfering with protected person’s job or school
- Award Temporary custody of the children to protected person and provide for supervised parenting time with the abuser
- Order abuser to continue making mortgage or rent payments for the benefit of the protected person and children
- Prohibit abuser from hiding or destroying personal property owned by the protected person or owned jointly with the abuser
- Prohibit abuser from harming any animal owned by the parties individually or jointly
- Require abuser to surrender any and all firearms in his/her possession to a licensed firearms dealer or to law enforcement
- Any other provision the Judge finds necessary for the protection and safety of the protected person.
Where do I file for a domestic Violence Protection Order?
You can request a Protection Order in any one of the following places:*7
- In the county where the abuse happened
- County where abuser lives
- County where you live
- County where abuser is employed, or
- County where you are employed.
Who is eligible for a Domestic Violence Protection Order? *8
- A relative or former relative by blood or marriage
- A spouse or ex-spouse
- The parent of your child
- A current or former intimate partner
- A current or former housemate
What is the cost to file a Domestic Violence Protection Order? *9
There are no filing fees when the reason for the protection is domestic abuse. There are no fees to serve the abuser through the Sheriff’s Office.
What steps should I take to obtain a Domestic Violence Protection Order?
- Go the County Courthouse and request the forms required for filing a “motion for civil protection order.”
- Fill out the forms completely and legibly. You will be the “Petitioner,” and the abuser will be the “Respondent.”
- List the county where you live and work and the same for the abuser
- List names and birthdates of all children involved
- Give detailed description of what happened and why you need protection
- Tell Court what relief you are requesting, i.e. abuser needs to vacate the home, not contact you at all, perhaps only contact by phone or text.
- Be specific. Tell the Judge what happened, who was there, where it happened, and when it happened. Give dates, times and full names of witnesses.
- Sign the motion and affidavit.
- Court Clerk can witness you sign the motion or complaint.(there will be no charge), or
- You can sign before a Notary Public. There is usually a nominal charge of $5.00 or so for this service.
- Have the Respondent served.
- The Sheriff in the county in which the abuser is located will serve the Respondent.
- You cannot be charged a fee for this service *10
- The Sheriff will fill out the affidavit/certificate of service (form 409) and give it back to you. Make sure you take this to the hearing.
Attend the Hearing
- The time and date of the hearing will appear on your Temporary Protection Order.
- If you do not appear, the Temporary Protection Order will expire
- If Respondent does not appear and you are able to show good service, the law allows the Judge to make the Order permanent with no further notice. *11
- If you and Respondent agree, the Judge may continue the Temporary Protection Order for up to one year. *12
- If you and Respondent do not agree, the Judge will hear testimony and decide whether to deny the Protection Order or make it permanent.
What do I do once the Protection Order is in place?
BEFORE YOU LEAVE THE COURTHOUSE read the entire Protection Order carefully. If something is wrong or missing, ask the clerk and get it corrected before you leave. Once you are certain the order is correct, get several copies. Make sure there is a copy of the order on your person at all times and in every place you may be. This would be in your car, your job, at your child’s daycare or school, and anywhere else you may find yourself. When Respondent has been served, include a copy of the certificate of service with each copy.
Double check to make sure the information you provided on the information sheet is complete and accurate so that law enforcement are able to enforce the order properly.
NOTE: A Protection Order is not a guarantee of your safety. It is merely a piece of paper. It cannot stop a fist, a knife or a bullet. Make sure you have an ongoing safety plan. Most abusers obey court orders but others ignore them. Protect yourself at all times and if the abuser violates the order, immediately report this to local law enforcement.
*1 Colo. Rev. Stat. 13-14-101(2)
*2 JFD 401 R8/13 Incidental Checklist ©2013 Colorado Judicial Department
*3 Colo. Rev. State. 13-14-101 (2.4)(a)
*4 Colo. Rev. Stat. 13-14-106(1)(a),(b)
*5 Colo. Rev. Stat. 13-14-103(1)(f)
*6 Colo. Rev. Stat. 13-14-105(1)(a)-(j), 13-14-104.5(8), 13-14-105.5(1)(a)&(2)(c)
*7 Colo. Rev. Stat. 13-14-104.5(3)
*8 Colo. Rev. Stat. 13-14-101(2)
*9 Colo. Rev. Stat. 13-14-109(1),(2)
*10 Colo. Rev. Stat. 13-14-109(2)
*11 Colo. Rev. Stat. 13-14-106(1)(a)
*12 Colo. Rev. Stat. 13-14-106(1)(a),(b)