In their recent book "In the Name of the Child" Janet R. Johnston and Vivienne Roseby, (recognized domestic violence experts here in the Colorado legal community), recognize three types of domestic violence:
1. Physical Assault including pushing, slapping, choking, hitting etc... or the use of a weapon, sexual assault, unlawful entry or the infliction of physical injury or death.
2. Intimidation: Psychological intimidation and control that includes stalking, threats to hurt or abduct children, threats to hurt others, violence against pets, destruction of property, isolation from friends and family, lack of access to marital resources such as money. and
3. Emotional Abuse: Psychologically damaging acts inflicted within the relationship such as name calling, put downs, undermining the victim's self esteem. The experts state that this type of emotional abuse is dysregulating to the victim and is often more pervasive and more psychologically damaging to the parent than physical abuse.

Colorado Courts recognize the premise that children that are exposed to domestic violence are directly damaged by the experience even though it does not directly involve them. Johnston and Roseby describe this phenomena by stating that the perceived threat of danger or death of the caregiver is not limited to physical violence. Children know when their caregivers are in a state of anxiety, fear, rage or dissociation. The child's brain literally mirrors the parent's nervous system arousal and the child literally and physically experiences the parent's state of being, the trauma state as well as the aggressor's rage state. This is very damaging to the child in both the short and the long term.

For this reason, Colorado has laws that allow Judges wide discretion when there is evidence of domestic violence to provide protection to the victim as well as adapt parenting time to assure that the children are not exposed to domestic violence.

There are a number of avenues available to the victim of domestic violence in a custody matter.

There are three legal avenues to take. The first is Criminal Charges, the second is a Dependency and Neglect Action and the third is the Family Law Domestic Court System.

1. Criminal Charges: If domestic abuse has occured in front of the children and the police are called and criminal charges filed, then the district attorney is going to decide weather or not to bring a no contact order before the Court under criminal laws that would prevent the perpetrator from having any contact with the victim or the children.

2. Dependency and Neglect Proceeding: To bring a Dependency and Neglect action, Social Services would have to be involved. This is a quasi criminal matter brought by the state and in many cases of D&N domestic abuse, drug or alcohol abuse is also involved. The Court in a Dependency and Neglect action has the power to remove the children and place them with relatives or in foster care. The Court also has the power to terminate parental rights of one or both parents if it is warranted under the circumstances.

3. Domestic/Family Law Civil Court: This is the Court where you would file for a divorce or file for an allocation of parental rights if you are not married.

-- Temporary Protection Orders: The Civil Court can order a temporary or permanent protection order even if there is no divorce or custody matter pending. To get a Temporary Restraining Order you can go to the Civil Court in your County and show the Court that you believe there is a threat of imminent harm. Soon afterwards there will be a Permanent Protection Order Hearing held and the perpetrator will have a chance to defend themselves against your allegations. The Temporary Protection Order you receive will be extended, made permanent or dismissed. The Protection Order can extend to your children. If you have already filed for divorce or allocation of parental responsibilities you can ask for the Temporary Protection Order in the same court that is handling your divorce or child custody matter. Also, if a Temporary or Permanent Protection Order has been issued and you subsequently file for divorce, the law requires that notice of prior protection orders must be disclosed in the Petition for Dissolution of Marriage. This allows the Court to be aware that there are domestic violence issues in the case and promts them to send out a notice concerning domestic violence counseling and a request to obtain support services for the children.

-- Automatic Temporary Injunction: When you file for divorce in Colorado an Automatic Temporary Injunction goes into effect as soon as the opposing party is served. Under this injuction both parties are enjoined from molesting or disturbing the peace of the other party. The police are required to use every reasonable means to enforce this part of the injunction. So, if you have a pending divorce action and your spouse is "disturbing your peace" you can call the police and they will have to enforce the injuction. Just make sure that you have a copy of your Petition for Dissolution of Marriage with you. Disturbing the peace is a lower bar than domestic violence.

-- Temporary Orders: Temporary Orders Hearings occur when the parties cannot agree on how to handle financial and child related matters during the pendency of the divorce. These hearings usually occur within three or so months from the date of the Petition for Dissolution being filed. At this Hearing the Court can specifically order that one party not disturb the peace of the other party or of any child. The Court can order that one party be exluded from the family home or home of the other party upon a showing that physical or emotional harm would otherwise result. The Court may order a Temporary or Permanent Protection Order. Other issues are also addressed such as who will pay what bills and temporary child support and/or maintenance can be ordered.

-- Permanent Orders: This is the final Hearing before the Court if the parties cannot come to an agreement. At this hearing parenting time and decision making regarding the child will be decided. The Courts in Colorado recognize the damage to children that domestic violence causes. They also must weigh the fact that it tends to be in the best interest of children to have contact with both parents. The Court does have the discresion to not order any parenting time with a parent if, after a hearing, the court finds that the parenting time would endanger the child's health or significantly impair the child's emotional development. The Court is required, however to look first for the least detrimental alternative to ending all contact beween a parent and a child. As for decision making, if there has been domestic violence, the presumption is that the parents cannot make decisions together and sole decision making will be seriously considered in most cases. The Court will also refrain from ordering mediation between the parties if there has been evidence of domestic violence.

Although you can get a Temporary Protection Order at any time by going to your County Court, if you are anticipating a divorce or a Petition has already been filed in your Divorce, you are better off applying for a Protection Order in the District Court where you have filed for Divorce. Why? Because the facts that support your need for a Protection Order are fadcts that you would want in front of your divorce judge for a number of reasons, especially if you have custody issues in your case and the "imminent danger" has an affect on the children.

When you apply for a Temporary Protection Order, the same standards apply regardless of what court you are in front of (County Court or District Court where you filed for divorce). The standard of proof for entering a Temporary Protection Order is a finding of imminent danger to the Petitioner. When you file for a Temporary Protection Order, the other party is not present, therefore, you alone are presenting evidence but the facts must present as imminent danger. The imminent danger must relate to the following:

• Assaults and threatened bodily harm
• Domestic Abuse (acts or threats of violence) or
• Stalking

When the Court issues the Temporary Protection Order it also automatically sets a Show Cause Hearing so that the other party may show cause for why the Temporary Protection Order should not be made permanent. (burden is on the respondent) This hearing must be held in the next 14 days.

Normally a Show Cause Hearing is heard and the party whom the Protection Order has been issued against has an opportunity to defend themselves against the allegations that lead to the Temporary Protection Order. However, in a divorce action, if both parties agree, the Temporary Protection Order can be extended until the divorce case is complete and the decision to make the Temporary Protection Order permanent can be made by the judge as part of the final orders in the divorce case.

Extending a Temporary Restraining Order during the Divorce may be in the best interests of both parties for the following reasons:

• The heated emotions of the moment may be significantly resolved by the end of the case.
• Permanent Protection Orders are severe. They cannot be modified or removed for 4 years.
• There is a different, lower standard for a Permanent Protection Order (see below) but, at a Show Cause Hearing the person who has the Temporary Protection Order against them has a chance to refute the petitioners claims.

Bottom line is that if Petitioner loses at the Show Cause Hearing they end up with no protection order at all and alternatively, if the Respondent loses, they end up with a minimum of a 4 year, non modifiable Permanent Protection Order to deal with. So there is risk on both sides. If you keep the Temporary Protection Order in place, there is time for the circumstances to resolve themselves without the 4 year punitive nature of the Permanent Order and without the chance of going unprotected during the pendency of the divorce.

It is important to note that if the Permanent Protection Order is granted, the party whom the Order is against cannot carry a gun legally during the time the Order is in place. This can be a career changing event for a police officer or other person who's job requires them to carry a gun.

If both parties do not agree to extend the Temporary Protection Order, then the Show Cause Hearing will be held and the Judge will have to decide if a permanent Protection Order is warranted. There is no requirement for imminent danger as before. Instead, the standard for granting a Permanent Protection Order is a finding that the incident of assault, threat of bodily harm act of domestic abuse or stalking "actually occurred" and that these acts are "reasonably likely" to reoccur.

Here is the strategic question for the client and their attorney: Given the standard for Permanent Protection Orders, should you insist on a Show Cause Hearing or agree to extend the Temporary Protection Order until the end of the Divorce Action. The answer to this question depends on all the facts in the case as well as the known propensities of the Judge and needs to be dealt with on a case by case basis.