PROTECTION ORDERS – RESTRAINING ORDERS
What is a Protection Order?
Protections orders, known in other states as restraining orders, generally prohibit one party from making contact in any way with another party. On this page, we will point out some of the most common rules, exceptions and procedures associated with protection orders in Colorado, especially within the context of a divorce or child custody case.
What If The Protected Person Keeps Calling Me?
Do not take the call. If you accidentally pick up, hang up. Most protection orders only prohibit contact in one direction. Meaning one person is ordered to have no contact with the other. So if the protected person calls the restrained person, the protected person has not violated any orders. It is perfectly legal for the protected person to attempt to contact the restrained person. Of course, doing this undermines the protected party’s claim that they need protection. However, not violating an order means not going to jail. The restrained party who takes that call very likely is. It is not uncommon for anger couples to reconcile without doing anything about an old protection order. However, if the couple gets pulled over for having a headlight out, or one of them calls the police for any reason, the restraining party is going to jail and the protected party is not.
What Does No Contact Mean?
For as long as a protection order is in place, the restrained party must have no contact with the protected party. That means not answering the call, hanging up when he or she discovers the protected party has called, leaving if the protected party is encountered in a public place, and staying well away from any locations prohibited by the order. There are no exceptions other than those listed on the order itself.
This absolute no-contact rule includes contact through third parties. Asking a friend or family member to pass on a message is a violation of the order. Sending a birthday card is a violation of the order. To put it simply, no contact means no contact in any form, at any place, on any day, in any way, ever, even for a moment.
Understandably, people who are restrained by protection orders seek to get around their conditions. However, when a restrained person attempts indirect, brief, or “harmless” contact, they are in fact making the need for the protection order more clear.
What Happens If A Protection Order Is Violated?
Violation of a protection order is a criminal offense, whether issued as part of a divorce or child custody case, a civil case, or a criminal case. In many cases, violation of a protection order is pretty straightforward. Text messages, email, postal mailings, photographs, videos, phone records, or witness testimony can easily result in a conviction. If the violation is proven beyond a reasonable doubt, jail time is likely.
Exceptions and Limitations in a Protection Order
Although typical protection orders simply require no contact at all, there are exceptions, especially in the context of family law. If children are involved, most courts recognize the need for co-parenting to continue. Parents need to be able to schedule parenting time, communicate regarding changes to parenting time, exchange and the child for parenting time. Parents need to be able to discuss the child’s well-being, decide on medical treatment, discuss school, etc. Accordingly, where a protection order is issued preventing contact between a mother and father, courts will usually include an exception for contact by email or text for the purpose of discussing the children. Courts also regularly limit protection orders to prevent a party from going to certain locations or allow contact by other means. Some even allow any contact as long as it does not become harassment.
There are two very crucial points to be aware of regarding exceptions and limitations to a protection order. First, any conditions and limitations need to be written on the protection order itself. The retrained party should make absolutely sure that if a judge makes any exceptions to a protection order on the record in court, all those exceptions are included on the actual paper version of the protection order. Arguably a judge’s exceptions that do not make it onto the profit out may still be valid. However, it may be difficult to persuade a police officer of that as they apply the cuffs. Having the exception right there on the form allows the restrained party to show police, if needed, that no violation has occurred because the judge specifically allowed the contact.
Second, The contact itself must fit the exception. For example, if a judge allows contact by email and text message regarding the child, Skype or video conference with the child is not an option where the parents are also present on either end. Birthday cards through the mail could possibly violate an order like this. By far the most common violation is a text message that starts out about the child and turns to some other subject. A restraining party telling the other parent he is an awful father does not fit the exception above and is a violation of the order. It is absolutely crucial that every bit of communication or contact fully and without question meet the exceptions granted by the court.
Protection for Those Who Really Need It
Even people with no history of abuse or violence can become threatening when the most important relationships in their lives are changing. That is one reason protection orders can be useful during divorce proceedings. In particular, the end of abusive relationships can be very dangerous, and courts and law enforcement should and will intervene to attempt to protect victims of abuse. However, sometimes protection orders are misused, especially where children are involved.
The initial request for a protection order goes straight to a judge. The accused/restrained party usually isn’t even in court when the temporary order is granted. The hearing to make the temporary order final is often set within just 14 days of the temporary order being granted. That’s not much time to prepare a defense to very serious allegations. If your protection order coincides with a family law case, you have other options. The family law court can generally be more flexible with how it resolves these cases, and can often devote more time to hearing both sides of the story before making a decision that is final.
Protection Order Misuse
Unfortunately, protection orders are too often requested for the wrong reasons. Parents seeking advantage in a child custody case sometimes use them as an intimidation tool, a way to deny the other parent access to their kids, or just a way to wear down the resources and resolve of an opposing party. This is in part because the restrained party usually does not get to attend court for the initial request. Perhaps more importantly, judges are understandably hesitant to deny protection orders to someone who claims under oath they are in danger, only to later learn that person was subsequently assaulted or killed.
There is not an easy or simple solution to this situation, or it likely would have already been put in place. However, the fact remains that protection orders are often enough misused that Attorney Vernon Ready has extensive experience identifying and defending against that kind of dishonest abuse of the system.
Late and inconsistent allegations, along with those that become more serious over time and those without any independent supporting evidence may all be signs of an intent to misuse protection orders. Allegations of abusive behaviors that occurred long ago, but were never reported to anyone until a child custody dispute began, are common features of those who later turn out to have been lying in an effort to “win” by ending their children access to a parent.
In almost all cases where protection order is sought primarily for leverage in a divorce, the parent requesting protection will attempt to include the child as a protected party in an attempt to deny the other parent access to the child. Sometimes the effort to include the child is completely unsupported by any allegation relevant to the child. These parents will sometimes have made a record through text messages or voicemail messages indicating they had no hesitations at all about leaving the child with the other parent right up until a custody fight began. Sometimes as quickly as one day after a discussion about separation or divorce, he or she will zealously assert the other parent is a danger to the child and start making every allegation possible to monopolize and control time with the child.
At Ready Law, we have unfortunately seen this pattern too many times. Attorney Vernon Ready has seen protection order abuse in the form of lies to police, to the courts, to child protective services, and even as far as protected parties ambushing restrained parties in hopes of “proving” a violation of the order. ReadyLaw has even faced opposing attorneys who have actively encouraged this type of abuse.
Despite the pettiness and manipulations that have come to surround too many protection order cases, Ready Law remains dedicated to helping good parents protect their relationships with their children. Parents seeking to misuse protection orders in hopes of gaining an advantage in a child custody disputes sometimes continue to invent more serious claims as a case progresses. This is especially true if earlier and less serious allegations do produce the outcome hoped for.
Even unfounded, untimely, and inconsistent allegations are cause for serious concern. It is impossible for any attorney to predict exactly which allegations a judge will or will not find credible. Accordingly, it is very important to choose a competent and experienced attorney who has faced these kinds of cases in the past.
If you are facing false accusations that just happen to coincide with a child custody dispute, it is very important not to lose time. Those who face this kind of situation are immediately on defense. You will need help to get to get to work crafting your very best defense and most effective strategy going forward. Call Vernon Ready now for a Free Consultation, or simply click the button below to schedule one yourself:
Whether you find yourself in need of protection or restrained by a temporary order, the following information regarding the overall protection order process in Colorado should be helpful.
Temporary Protection Orders
Temporary protection orders are typically granted when any person requests one from a Court, pays the filing fee, and justifies the request by stating that they believe they are in imminent danger. Temporary protection orders usually require absolutely no contact with the protected person(s) and usually include a home or work address where the restrained party must not appear. The order is valid upon notice to the restrained party, which is often served by a Sheriff’s Department upon request by the protected party. Violation of the order is a misdemeanor but often results in jail time for those convicted in Denver Metro counties.
A hearing to determine whether the temporary order should be made permanent will be set at the time the temporary order is granted by the court. That hearing is typically set within 14 days of the date the temporary order is granted. The time, date and place of that hearing will be indicated on the temporary protection order and the restrained party is expected to attend that hearing.
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Permanent Protection Orders
At the permanent protection order hearing the person requesting that the order be made permanent (the protected party) usually must prove that the restrained party was notified of the temporary order and served notice of the time and place of the permanent orders hearing. If the protected party provides proof of that notice and the restrained party fails to appear to object, the court will make the order permanent.
If the restrained party appears for the hearing, the protected party will have the burden to show that a permanent order is needed to prevent further harm. The legal standard which applies at this hearing is more difficult to meet than the standard for the temporary order. If the court makes the order permanent, it will remain in effect until a court changes it. Agreement between the parties not to enforce it does not change the order at all. After a protection order has been made permanent, the restrained party may not ask for a modification for at least four years in most cases.
The impact of a protection order on a domestic case can be serious. There is always the potential that the simple existence of a protection order could bias the family court judge on many other issues. More immediately, protection orders make successful negotiation of all family case issues more difficult, they impede contact with children, complicate property exchanges, etc. Protection orders typically also include other terms such as prohibitions on the possession of firearms and even alcohol use.
If a protection order is already in place in your case, the assistance of an attorney becomes even more important to both the restrained and the protected party. Although a restrained party is forbidden by the protection order to contact the protected party, including through third parties, lawyers in the case may continue to contact the other side as they go about the duties of representation.
This exception does not mean an attorney will be passing on messages between a restrained party and a protected person. However, an attorney representing a restrained party is able to contact the opposing party or the opposing counsel on behalf of their client, just as they would in any other case. This means that an unrepresented restrained party involved in a divorce or child custody case may find themselves isolated and unable to communicate in a meaningful way about matters important to the case. For these people, representation can be the key to moving their case forward and protecting their interests.