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A client in a divorce or custody matter with a pending criminal case must know this could affect their domestic relations case. Dealing with a pending criminal charge can affect anyone going through a divorce or custody case simultaneously.
To prevent a criminal case from affecting the divorce or custody case, a client may want to consider hiring an attorney who practices in both areas of law.
Unfortunately, it is common knowledge in domestic relations cases that if someone has a pending criminal case, this could give the other side a leg up in the domestic relations matter.
There are also instances of poor judgment and criminal behavior that result in a pending criminal case that gives rise to a domestic relations case.
Under either scenario, a client must retain an attorney who knows how to navigate the severity of the criminal case but understands each decision in the criminal case may affect the domestic relations matter.
Domestic Violence and Divorce
A pending domestic violence case may never relate to your client’s divorce. But, that does not mean that the case does not have a possible impact.
For example, a mandatory protection order is issued in a domestic violence case, which may cause issues surrounding the allocated personal property and the marital home. It would help if your client had an attorney skilled in negotiating creative ways to obtain their property.
If the victim objects to any modification of the mandatory protection order, the client may never return to the marital home.
Another time domestic violence may be relevant is if your divorce also involves issues surrounding parental responsibilities.
Domestic Violence and Parental Responsibilities
Parental responsibilities are the orders related to the rights your clients have regarding their children. Even lawyers use the term custody, but the law now refers to those same rights as parental responsibilities. Parental responsibilities comprise two things: parenting time (formerly known as physical custody) and decision-making (formerly known as legal custody).
For example, a Court must allocate parental responsibilities in a pending divorce if it involves children. Or, if the parties are not married but share a child, then the Court will allocate parental responsibilities once a party claiming parental rights files a Petition.
In each instance, domestic violence is usually relevant to the proceedings because the legislature in 1999 amended C.R.S. § 14–10–124, which is the law pertaining to the children’s best interest.
As part of that amendment, the legislature found that domestic violence could be a factor in determining parental responsibilities. Thus, if a client is charged with a domestic violence case, their parental responsibilities could be affected.
A domestic violence case could affect a client’s parenting time if the Court finds them to be a harm to the child or the abused party. The Court must continue to use C.R.S. § 14–10–124 to determine what is in the children’s best interests. This could mean possibly less than equal parenting time or even supervised parenting time, depending on the facts of the case.
Decision-making is usually the most affected parental responsibility if the Court finds that domestic violence is present. Decisions for the children are divided into four major categories: medical, educational, religious, and extracurricular.
If the Court finds by a preponderance of the evidence that domestic violence is present, then “[i]t shall not be in the best interests of the child to allocate mutual decision-making responsibility for the objection of the other party or the legal representative of the child, unless the Court finds that there is credible evidence of the ability of the parties to make decisions cooperatively in the best interest of the child in a manner that is safe for the abused party and the child.” C.R.S. § 14–10–124.
With effective legal representation, a party can show the Court credible evidence that the parties can engage in joint decision-making despite the evidence related to domestic violence.
However, suppose the Court does not find credible evidence that the parties can engage in joint decision-making. In that case, this means a client could not make any medical, educational, religious, and extracurricular decisions for their children.
Therefore, a client needs a domestic relations attorney with the background necessary to effectively present credible evidence to the Court regarding decision-making capabilities among the parties despite any domestic violence.
A client charged with a domestic violence case is already scared and stressed, but the stress and worry only intensify when a domestic relations case is also initiated.
Hence, clients may need to select an attorney with the expertise to handle both. This not only ensures that clients are receiving the best advice across both cases, but it also saves clients the time and money of hiring two attorneys.
Jamie Paine is an associate attorney at Griffiths Law. Jamie’s practice focuses primarily on domestic relations matters, but given her years of experience as a prosecutor, she helps clients navigate their criminal law issues too. Jamie’s experience as a prosecutor helps her handle the most complex cases with a tactful strategy to achieve the best results.