Civil Restraining Orders — C.R.S. 13-14
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13-14-101 - Definitions.
13-14-102 - Civil restraining orders.
13-14-101 - Definitions.
13-14-102. Civil restraining orders.
For purposes of this article, unless the context otherwise requires:
(1) "Abuse of the elderly" means mistreatment of a person who is sixty years of age or older, including but not limited to repeated acts that:
(a) Constitute verbal threats or assaults;
(b) Constitute verbal harassment;
(c) Result in the inappropriate use or the threat of inappropriate use of medications;
(d) Result in the inappropriate use of physical or chemical restraints;
(e) Result in the misuse of power or authority granted to a person through a power of attorney or by a court in a guardianship or conservatorship proceeding that results in unreasonable confinement or restriction of liberty.
(2) "Domestic abuse" means any act or threatened act of violence 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. "Domestic abuse" may also include any act or threatened act of violence against the minor children of either of the parties.
(3) "Stalking" means the crime of stalking as described in section 18-9-111 (4), C.R.S.
Source: L. 99: Entire article added, p. 495, § 1, effective July 1. L. 2000: (3) amended, p. 1012, § 3, effective July 1.
Editor's note: Section 3 of chapter 229, Session Laws of Colorado 2000, provides that the act amending subsection (3) applies to offenses committed on or after July 1, 2000.
Law reviews. For article, "Statutes Consolidate Civil Restraining Orders", see 28 Colo. Law. 39 (October 1999).
(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;
(2) Any civil restraining order issued pursuant to this section shall be issued using the standardized set of forms developed by the state court administrator pursuant to section 13-1-136.
(2.5) 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.
(3) A motion for a temporary civil restraining order shall be set for hearing, which hearing may be ex parte, at the earliest possible time and shall take precedence over all matters, except those matters of the same character that have been on the court docket for a longer period of time. The court shall hear all such motions as expeditiously as possible.
(4) (a) 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.
(b) If the judge or magistrate finds that an imminent danger exists to the employees of a business entity, he or she may issue a civil restraining order in the name of the business for the protection of the employees. An employer shall not be liable for failing to obtain a civil restraining order in the name of the business for the protection of the employees and patrons.
(5) Upon the filing of a complaint duly verified, alleging that the defendant has committed acts that would constitute grounds for a civil restraining order, any judge or magistrate, after hearing the evidence and being fully satisfied therein that sufficient cause exists, may issue a temporary civil restraining order to prevent the actions complained of and 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; except that, if the temporary restraining order is issued by the district court in connection with an action filed under the "Uniform Dissolution of Marriage Act", article 10 of title 14, C.R.S., or by the juvenile court under the "Uniform Parentage Act", article 4 of title 19, C.R.S., the court may dispense with the issuance of a citation and require that the temporary restraining order remain in effect until revoked, modified, or terminated as provided in section 14-10-108, C.R.S. In addition, the court may order any other relief that the court deems appropriate. Complaints may be filed by persons seeking protection for themselves or for others as provided in section 26-3.1-102 (1) (b) and (1) (c), C.R.S. 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.
(6) 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 upon the person to be protected, if the complaint was filed by another person, in accordance with the rules for service of process as provided in rule 304 of the rules of county court civil procedure or rule 4 of the Colorado rules of civil procedure. 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.
(7) 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.
(8) (a) 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.
(b) When any person is served with notice of a temporary restraining order issued against such person excluding such person from a shared residence, such notice shall contain a notification in writing to such person of such person's ability to return to such shared residence pursuant to paragraph (a) of this subsection (8). Such written notification shall be in bold print and conspicuously placed in such temporary restraining order. No judge, magistrate, or other judicial officer shall issue a temporary restraining order that does not comply with this subsection (8).
(c) 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 entitled to avail himself or herself of the forcible entry and detainer remedies available pursuant to article 40 of this title. However, such 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. A landlord whose lessee has been excluded from a residence pursuant to the terms of a restraining order is also entitled to avail himself or herself of the remedies available pursuant to article 40 of this title.
(9) (a) On the return date of the citation, or on the day to which the hearing has been continued, the judge or magistrate shall examine the record and the evidence. If upon such examination the judge or magistrate is of the opinion 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 18-6-803.5, C.R.S., or shall constitute contempt of court and subject the defendant to such punishment as may be provided by law. 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.
(b) Notwithstanding the provisions of paragraph (a) of this subsection (9), the judge or magistrate, after examining the record and the evidence, for good cause shown may continue the temporary restraining order 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. The judge or magistrate shall inform the defendant that a violation of the temporary civil restraining order shall constitute a criminal offense pursuant to section 18-6-803.5, C.R.S., or shall constitute contempt of court and subject the defendant to such punishment as may be provided by law.
(10) A copy of any order issued pursuant to this section shall be delivered to any law enforcement agency having jurisdiction to enforce said order and to the protected party.
(11) If the order has not been personally served, the peace officer responding to a call for assistance shall serve a copy of said order on the person named defendant therein and shall write the time, date, and manner of service on the protected person's copy of such order and shall sign such statement.
(12) The duties of peace officers enforcing the civil restraining order shall be in accordance with section 18-6-803.5, C.R.S., and any rules adopted by the Colorado supreme court pursuant to said section.
(13) A person failing to comply with any order of the court issued pursuant to this section shall be found in contempt of court or may be prosecuted for violation of a civil restraining order pursuant to section 18-6-803.5, C.R.S.
(14) 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.
(15) A municipal court of record that is authorized by its municipal governing body to issue restraining orders and any county court, in connection with issuing a civil restraining order, shall have original concurrent jurisdiction with the district court to issue such additional orders as the municipal or county court deems necessary for the protection of persons. Such additional orders 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) (I) Awarding temporary care and control of any minor children of either party involved for a period of not more than one hundred twenty days.
(II) 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.
(III) The standard for the award of temporary care and control shall be in accordance with section 14-10-124, C.R.S.
(f) Such other relief as the court deems appropriate.
(16) 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", article 13 of title 14, C.R.S.
(17) Any order granted pursuant to paragraph (c) or (e) of subsection (15) of this section shall terminate whenever a subsequent order regarding the same subject matter is granted pursuant to the "Uniform Dissolution of Marriage Act", article 10 of title 14, C.R.S., or the "Uniform Child-custody Jurisdiction and Enforcement Act", article 13 of title 14, C.R.S., or the "Colorado Children's Code", title 19, C.R.S.
(17.5) (a) Nothing in this section shall preclude the protected party from applying to the court at any time for modification, including but not limited to a modification of the duration of the restraining order, or dismissal of a temporary or permanent restraining order issued pursuant to this section. The restrained party may apply to the court for modification, including but not limited to a modification of the duration of the restraining order, or dismissal of a permanent restraining order pursuant to this section. However, if a permanent restraining order has been issued or if a motion for modification or dismissal of a permanent restraining order has been filed by the restrained party, whether or not it was granted, no motion to modify or dismiss may be filed by the restrained party within four years after issuance of the permanent order or after disposition of the prior motion.
(b) (I) Notwithstanding any provision of paragraph (a) of this subsection (17.5) to the contrary, after issuance of the permanent restraining order, if the restrained party is convicted of any misdemeanor other than the original misdemeanor that formed the basis for the issuance of the restraining order, 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 section 18-6-800.3 (1), C.R.S., or of any felony, then the restraining order shall remain permanent and shall not be dismissed by the court.
(II) Any motion to modify a restraining order filed by a restrained party pursuant to paragraph (a) of this subsection (17.5) shall 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) Except as otherwise provided in this section, the issuing court shall retain jurisdiction to enforce, modify, or dismiss a temporary or permanent restraining order.
(d) Any motion filed pursuant to paragraph (a) of this subsection (17.5) shall be heard by the court. The party moving for a modification or dismissal of a temporary or permanent restraining order pursuant to paragraph (a) of this subsection (17.5) shall affect personal service on the other party with a copy of the motion and notice of the hearing on the motion, as provided by rule 4 (e) of the Colorado rules of civil procedure. The moving party shall bear 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.
(e) In considering whether to modify or dismiss a restraining order issued pursuant to this section, the court shall consider all relevant factors, including but not limited to:
(I) Whether the restrained party has complied with the terms of the restraining order;
(II) Whether the restrained party has met the conditions associated with the restraining order, if any;
(III) Whether the restrained party has been ordered to participate in and complete a domestic violence treatment program provided by an entity approved pursuant to section 16-11.8-103 (4) (b) (III) (C), C.R.S., and whether the restrained party has completed the program;
(IV) Whether the restrained party has voluntarily participated in any domestic violence treatment program or other counseling addressing domestic violence or anger management issues;
(V) The time that has lapsed since the restraining order was issued;
(VI) When the last incident of abuse or threat of harm occurred or other relevant information concerning the safety and protection of the protected person;
(VII) 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 section 18-6-800.3 (1), C.R.S., other than the original offense, if any, that formed the basis for the issuance of the restraining order;
(VIII) 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
(IX) The circumstances of the parties, including the relative proximity of the parties' residences and work places and whether the parties have minor children together.
(18) 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 burden of proof as described in subsection (4) of this section 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 the requirements set forth in this subsection (18).
(20) Enactment of this section shall not affect the effectiveness of any civil restraining order issued prior to July 1, 1999.
(21) (a) 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 section 13-14-101 (2); domestic violence as defined by section 18-6-800.3 (1), C.R.S.; stalking as defined by section 18-9-111, C.R.S.; or sexual assault as defined by section 18-3-402, C.R.S. Petitioners shall be provided the necessary number of certified copies at no cost.
(b) 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 section 18-6-800.3 (1), C.R.S.; stalking as defined by section 18-9-111, C.R.S.; or sexual assault as defined by section 18-3-402, C.R.S.
(c) 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.
Source: L. 99: Entire article added, p. 496, § 1, effective July 1. L. 2000: IP(1), (5), and (6) amended, (2.5) added, and (19) repealed, pp. 1012, 1013, § § 4, 5, 6, effective July 1; (16) and (17) amended, p. 1538, § 5, effective July 1. L. 2002: (4) amended, p. 323, § 1, effective April 19; (9)(b) amended and (17.5) added, p. 491, § 1, effective July 1; (11) amended and (21) added, p. 1143, § 1, effective July 1.
Editor's note: (1) Section 4 of chapter 157, Session Laws of Colorado 2002, provides that subsection (17.5)(b) applies to offenses committed on or after July 1, 2002. (2) Section 3 of chapter 294, Session Laws of Colorado 2002, provides that the act set out in that chapter amending subsection (11) and enacting subsection (21) applies to all petitions for civil restraining orders filed on or after July 1, 2002.
Law reviews. For article, "Statutes Consolidate Civil Restraining Orders", see 28 Colo. Law. 39 (October 1999).
This section of the current law is based on the false premise that men will obey a law that denies them virtually every protection they have fought and died for. Wars, including the American Revolution, have been fought over less substantial issues of freedom than are encompassed in § 13-14-102 C.R.S. For example, this law allows men to be torn from all the things they love most, next to life itself, without notice, without hearing, and without justice.
If men are forced from their homes and children, they will fight. Domestic abuse here describes governmental tyranny based on an ideology that history has shown is flawed and unworkable. And providing someone with a piece of paper as a shield against man's most primitive emotions is the height of folly.
Experience has shown that while § 13-14-102 C.R.S. tends to increase the level of violence, it is an effective and oft used weapon of women seeking custody of the children and possession of the house and other family assets in a divorce. It is presently estimated that one-third of divorces in Colorado now involve allegations of domestic abuse or violence almost exclusively as a weapon to gain advantage. And a powerful weapon it is, though sometimes the results are fatal.
The provisions herein are more likely to provoke violence than forestall it. And studies show that in many cases that is exactly what happens. And restraining orders clearly provide no protection whatsoever.
In a National Institute of Justice report NCJ 186194, Dugan and others (2001) have found that "Increases in the willingness of prosecutors' offices to take cases of protection order violation were associated with increases in the homicide of white married intimates, black unmarried intimates, and white unmarried females." Thus, enforcement of § 13-14-102 C.R.S. demonstrably leads to murder in some cases. Is homicide the intended "protection" sought?
In effect, current law incites violence rather than quells it.
Might honoring the rights of men and providing due process work better?
Proposed changes follow the format:
• Text in ordinary font is language that exists now.
• Text in bold indicates intention of proposed changes.
• Language to be removed is indicated by
striking it out.
• Language to be added is indicated by text in [non-proportional Courier font] surrounded by square brackets [ ].
For purposes of this article, unless the context otherwise requires:
(1) "Abuse of the elderly" means mistreatment of a person who is sixty years of age or older, including but not limited to repeated acts that:
(a) Constitute verbal threats or assaults;
(b) Constitute verbal harassment;
(c) Result in the inappropriate use or the threat of inappropriate use of medications;
(d) Result in the inappropriate use of physical or chemical restraints. [However, medically necessary and authorized restraint of patients with mental disorders shall not be construed as abuse.] ;
(e) Result in the misuse of power or authority granted to a person through a power of attorney or by a court in a guardianship or conservatorship proceeding that results in unreasonable confinement or restriction of liberty.
[(f) Result in physical injury or have the potential to result in physical injury.]
Note: There needs to be a clear distinction made between "domestic" and other forms of abuse. Time limits must also be imposed. A woman in her forties should not be capable of obtaining a restraining order against someone she was intimate with in high school as is possible under current definitions. Nor should a woman who has simply spent the night with a man have the right to obtain a domestic abuse restraining order against him. The law provides other, time-tested remedies for such situations.
Also, today men and women commonly room together in a "dormitory" fashion without physical intimacy in order to pay rent. As currently written, anyone in a college dormitory could obtain a restraining order against anyone else in the same "domicile."
(2) "Domestic abuse" means any act or threatened act of violence,
[any other crime against a person or against property or any municipal ordinance violation against a person or against property when used as a method of coercion, control, punishment, intimidation, or revenge]
that is committed by any person against another person to whom the
actor
[plaintiff]
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
[plaintiff]
is involved
or has been involved in an
[in a physically]
intimate relationship
[for a period of more than 30 days, or was formerly involved with for a period of more than 30 days within the previous year].
"Domestic abuse" may also include any act or threatened act of violence
[beyond the bounds of normal and accepted discipline]
against the minor children of either of the parties.
(3) "Stalking" means the crime of stalking as described in section 18-9-111 (4), C.R.S.
[(4) A "shared residence" is one in which both parties were living together for a period of at least one month prior to the alleged offense and both have a legal right to be on the property in the form of a title, lease, or other conveyance showing both names.]
Note: The following paragraph at present promotes and encourages "judge shopping" and the issuance of multiple restraining orders in the same case. Also, as Article II, Section 18, of the Colorado Constitution prohibits putting a citizen twice in jeopardy for the same offence, a single court should be designated as having jurisdiction. At present county courts handle most such restraining orders and it is suggested they be given exclusive jurisdiction to minimize confusion and abuse of the law.
(1) Any
municipal court of record, if authorized by the municipal governing body, any
county court
, and any district court
shall have
original concurrent
[exclusive]
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
[upon the sworn affidavit of a citizen who is eighteen years of age or older and a resident of that county]
for any of the following purposes:
(a) To prevent assaults and threatened bodily harm;
(b) To prevent domestic abuse;
(c) To prevent [ physical or ] emotional abuse of the elderly;
Note: Res judicata and double jeopardy are routinely ignored in present restraining order cases, thus violating the constitutional rights of the accused. See Article II, Section 18 of the Colorado Constitution. Thus the following is suggested.
[(1.5) No court shall issue a civil restraining order based in whole or in part on allegations that have been previously adjudicated in a criminal case or in another civil case.]
(2) Any civil restraining order issued pursuant to this section shall be issued using the standardized set of forms developed by the state court administrator pursuant to section 13-1-136 C.R.S.
Note: Again the following language describing venue encourages and promotes "judge shopping" and the issuance of multiple restraining orders in the same case. Venue should be proper only in the county where the plaintiff resides.
(2.5) 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.
[the county where the plaintiff maintains a legal residence at the time the motion or complaint is filed.]
This requirement for venue does not prohibit the change of venue to any other county appropriate under applicable law.
Note: Ex parte orders currently invoke the most draconian steps a government can take short of execution without any pretense of due process. An emergency order of separation may occasionally be necessary but should be strictly time-limited, e.g., 72 hours. Beyond that time all due process should, and must be observed if our freedoms are to be preserved.
Also, the current fourteen day time limit for a hearing is considered too short a period for a defendant to obtain competent counsel and prepare a defense in many cases. Thus, a 30-day period from date of filing is suggested.
Further, if the parties are seeking a divorce then the applicable law is the Uniform Dissolution of Marriage Act and the restraining order defined there in section 14-10-107(4)(b) as defined and required in section (17) below.
(3) A motion for a
temporary
civil restraining order shall be set for hearing [
, which hearing may be ex parte,
] at the earliest possible time and shall take precedence over all matters, except those matters of the same character that have been on the court docket for a longer period of time. The court shall hear all such motions as expeditiously as possible [
but not later than thirty (30) calendar days from the date the defendant is properly served.
(a) In cases where an emergency restraining order has been issued but the plaintiff fails to show at the hearing the court shall dismiss the restraining order and the plaintiff may not be granted any other restraining order based on the same allegations.
(b) In cases where an emergency restraining order has been issued but the defendant cannot be present for the hearing for good cause, or the defendant has not been properly served with notice at least 24 hours prior to the scheduled hearing, or the defendant has been unable to obtain counsel to appear in his defense, the court shall continue the proceedings and the restraining order for an additional thirty days to allow time for both parties to be notified and attend, and the defendant to obtain counsel and prepare his or her case. Alternatively, the plaintiff may ask that the restraining order be dropped at the initial hearing in which case the court will dismiss the action.
(c) In cases where an emergency restraining order has been issued and both parties appear at the hearing, upon motion of the defendant he or she will be granted a 30 day extension to obtain counsel and prepare their defense. The judge or magistrate shall affirmatively notify the defendant of this right. During such extension a temporary restraining order based on the original allegations will remain in effect against Defendant.
(d) If the parties in this action are legally married, and the parties seek dissolution of their marriage at any time the restraining order requested by the plaintiff is in force, the terms of the restraining order defined in § 14-10-107(4)(b) C.R.S. shall supersede and take precedence over the existing action. The judge or magistrate shall then dismiss the present restraining order and transfer the case to the court wherein the parties are seeking dissolution of their marriage in order for that action to proceed.]
Note: Reasonable time limits should be placed on incidents that are supposed to pose an immediate threat to a person's health and safety. A person should not be able to obtain a restraining order today for alleged actions that occurred a decade ago or that have already been adjudicated or dismissed in another hearing, trial, or jurisdiction.
(4) A
temporary
civil restraining order may be issued
[after a full, fair, and complete hearing]
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
[documented]
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
[not to exceed 30 calendar days]
between an act of abuse or threat of harm and filing of the petition for a restraining order.
[(a) "Imminent danger" shall be more than vague fears, unsubstantiated emotional unease or potential harm, dislike, unconfirmed rumors, or hearsay.]
[(b) The court may admit recordings of telephone messages or conversations with the defendant between the plaintiff and the defendant or between the defendant and other parties that show such danger exists or that specific threats have been made, letters or other writing of the defendant that contain specific threats, testimony by witnesses who heard the defendant make threats or perform actions dangerous to the plaintiff, photographs of property the defendant may have maliciously damaged or destroyed, vandalism, records of other criminal activity, or other evidence the court finds relevant to substantiate that the danger to the plaintiff is clear and present.]
[(c) If emotional harm is alleged as a basis for the restraining order, expert testimony from a qualified professional must substantiate such harm exists, or will occur if the defendant is not restrained.]
[(d) The fact that the defendant uses, or has used guns or other potential weapons in his or her occupation shall not be construed as a clear and present danger to the plaintiff unless other evidence is brought forth to show such danger clearly exists.]
[(e) If the evidence of imminent danger includes observed or verified injuries to the plaintiff the court shall remand the case to the district attorney for prosecution as a criminal matter under § 18-8-601 et seq. C.R.S. and the restraining order defined in § 18-1-1001 C.R.S. imposed on the defendant.]
Note: We are aware of at least one case where a man left one woman and later married another. The woman he had left then filed, and was granted a restraining order preventing him from being with his wife or in his home. Such actions are currently permitted under section 26-3.1-102 (1) (b) and (1) (c), C.R.S. and authorized in the following paragraph under current law.
Also, current law denies due process for no apparent reason.
(5) Upon the filing of a complaint duly
[sworn and]
verified, alleging that the defendant has committed acts that would constitute grounds for a civil restraining order, any
[county]
judge or magistrate
[sitting in the county in which the plaintiff resides],
after [
a full, fair, and complete
] hearing [
of
] the evidence [
from all parties,
] and being fully satisfied therein that sufficient cause exists, may issue a
temporary
civil restraining order [
for a period not to exceed one year
] to prevent the actions complained of [
and 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
]; except that, if the
temporary
restraining order is issued by the district court in connection with an action filed under the "Uniform Dissolution of Marriage Act", article 10 of title 14, C.R.S., or by the juvenile court under the "Uniform Parentage Act", article 4 of title 19, C.R.S., the court
may
[will]
dispense with the issuance of a citation and require that
the
[a]
temporary
restraining order remain in effect until revoked, modified, or terminated as provided in section
14-10-108, C.R.S.
[14-10-107(4)(b), C.R.S.]
In addition, the court may order
[on the record]
any other relief that the court deems appropriate
[and reasonable].
[New subparagraphs. Required to protect Sixth Amendment rights.
(a) Complaints may be filed [as the plaintiff] by persons seeking protection for themselves or for others as provided in section 26-3.1-102 (1) (b) and (1) (c), C.R.S. [ Any person filing a complaint on behalf of another will be required to appear as the plaintiff at all subsequent hearings.]
[(b)]
If the
[plaintiff appears but 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 [and timely] served with
the temporary restraining order and
such citation,
[and the defendant has not requested an extension for the hearing date,]
it shall not be necessary to re-serve the defendant to make the [
terms of the
] restraining order
permanent
[effective
].
[(c) If the plaintiff fails to appear at any scheduled hearing on this matter without good cause or prior notice, the court will dismiss the action as well as the restraining order and notify the appropriate agencies the order has been dismissed.]
(6) A copy of the complaint together with a copy of the
temporary
civil restraining order
[sought,]
and a copy of the citation shall be served upon the defendant and upon the person to be protected, if the complaint was filed by another person, in accordance with the rules for service of process as provided in rule 304 of the rules of county court civil procedure or rule 4 of the Colorado rules of civil procedure. 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
.
(7) The return date of the citation shall be set not more than
fourteen
[thirty]
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
[
any
] 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
[
plaintiff
] may thereafter request additional
[thirty day]
continuances as needed
[for up to one year]
if the petitioner has still been unable to serve the defendant.
(a) If the defendant cannot be served within thirty days of the original petition because he or she has left the state or country, or is deployed on active military service, and is not likely to return to the state within six months, the Court will dismiss the complaint with prejudice.]
(8) (a) 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
[for up to eight hours]
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
[the restraining order is in effect. A shared residence is one in which both parties were living together for a period of at least one month prior to the alleged offense and both have a legal right to be on the property in the form of a title, lease, or other conveyance showing both names. No person shall be entitled to use this section to attempt to exclude a rightful owner or leaseholder from their domicile or any real property, or the full use thereof.]
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.
(b) When any person is served with notice of a
temporary
restraining order issued against such person excluding such person from a shared residence, such notice shall contain a notification in writing to such person of such person's ability to return to such shared residence pursuant to paragraph (a) of this subsection (8). Such written notification shall be in bold print and conspicuously placed in such
temporary
restraining order. No judge, magistrate, or other judicial officer shall issue a
temporary
restraining order that does not comply with this subsection (8).
(c) 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 entitled to avail himself or herself of the forcible entry and detainer remedies available pursuant to article 40 of this title. However, such 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. A landlord whose lessee has been excluded from a residence pursuant to the terms of a restraining order is also entitled to avail himself or herself of the remedies available pursuant to article 40 of this title.
(9) [
(a) On the return date of the citation, or on the day to which the hearing has been continued, the judge or magistrate shall examine the record and the evidence. If upon such examination the judge or magistrate is of the opinion 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 18-6-803.5, C.R.S., or shall constitute contempt of court and subject the defendant to such punishment as may be provided by law. 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.
]
(b)
Notwithstanding the provisions of paragraph (a) of this subsection (9), the judge or magistrate, after examining the record and the evidence, for good cause shown may continue the temporary restraining order 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.
The judge or magistrate shall inform the defendant that a violation of the
temporary
civil restraining order shall constitute a criminal offense pursuant to section
18-6-803.5, C.R.S.,
or shall constitute contempt of court and subject the defendant to such punishment as may be provided by law.
(10) A copy of any order issued pursuant to this section shall be delivered to any law enforcement agency having jurisdiction to enforce said order and to the protected party.
(11) If the order has not been personally served, the peace officer responding to a call for assistance shall serve a copy of said order on the person named defendant therein and shall write the time, date, and manner of service on the protected person's copy of such order and shall sign such statement.
(12) The duties of peace officers enforcing the civil restraining order shall be in accordance with section 18-6-803.5, C.R.S. , and any rules adopted by the Colorado supreme court pursuant to said section.
(13) A person failing to comply with any order of the court issued pursuant to this section shall be found in contempt of court or may be prosecuted for violation of a civil restraining order pursuant to section 18-6-803.5, C.R.S.
(14) 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. [ No court may impose a civil restraining order on a defendant where such a restraining order for substantially the same charges has been denied or dismissed in any other jurisdiction, or where the statute of limitations of any alleged crime has run out as of the date the citation was issued, or where the allegations have been previously adjudicated, or are subject to a hearing or trial in a criminal case. ]
(15) A
municipal court of record that is authorized by its municipal governing body to issue restraining orders and any
county court, in connection with issuing a civil restraining order, shall have original concurrent jurisdiction with the district court to issue such additional orders
as the municipal or
county court deems necessary for the protection of persons. Such additional orders 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;
Note: § 13-4-102(15)(b) violates right of the accused to obtain witnesses in their defense.
[
(b) Restraining a party from contacting any other party or the minor child of either of the parties;
]
Note: What constitutes "emotional harm" is unconstitutionally vague and broad and the term is undefined. Predicting the future is beyond mortal ken and thus it is impossible to show that "physical harm" would otherwise result. Section (15)(a) already restrains the party "from threatening, molesting, or injuring 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)
(I)
Awarding temporary care and control of any minor children of either party involved for a period of not more than one hundred twenty days.
[(I) Unless good cause is shown to do otherwise, the court will award temporary custody and control of minor children to the parent who remains in the shared residence unless that parent is not the biological parent of one or more of the minor children. If the excluded parent is sole biological parent of one or more of the children in the shared residence, or the excluded parent is the adoptive parent of one or more of the minor children, the court should attempt to place each child with their biological or adoptive parent unless good cause is shown to do otherwise.]
(II) If temporary care and control is awarded, the order
may
[should]
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
[after a full, fair, and complete hearing on the issue]
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.
(III) The standard for the award of temporary care and control shall be in accordance with section 14-10-124, C.R.S.
(f)
Such other relief as the court deems appropriate.
[For the safety of the protected person the court may order that exchanges of minor children for parenting time be made at a police station or sheriff's office in the presence of a peace officer.]
(16) 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", article 13 of title 14, C.R.S.
(17) Any order granted pursuant to paragraph (c) or (e) of subsection (15) of this section shall terminate whenever a subsequent order regarding the same subject matter is granted pursuant to the "Uniform Dissolution of Marriage Act", article 10 of title 14, C.R.S. , [as defined in § 14-10-107(4)(b) upon petition of the parties for dissolution of their marriage,] or the "Uniform Child-custody Jurisdiction and Enforcement Act", article 13 of title 14, C.R.S. , or the "Colorado Children's Code", title 19, C.R.S.
(17.5) (a) Nothing in this section shall preclude the protected party from applying to the court at any time for modification, including but not limited to a modification of the duration of the restraining order, or dismissal of a temporary or permanent restraining order issued pursuant to this section. The restrained party may apply [
after six months
] to the court for modification, including but not limited to a modification of the duration of the restraining order, or dismissal of a permanent restraining order pursuant to this section.
However, if a permanent restraining order has been issued or if a motion for modification or dismissal of a permanent restraining order has been filed by the restrained party, whether or not it was granted, no motion to modify or dismiss may be filed by the restrained party within four years after issuance of the permanent order or after disposition of the prior motion.
(b) (I) Notwithstanding any provision of paragraph (a) of this subsection (17.5) to the contrary, after issuance of the permanent restraining order, if the restrained party is convicted of any misdemeanor other than the original misdemeanor that formed the basis for the issuance of the restraining order, 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 section 18-6-800.3 (1), C.R.S., or of any felony, then the restraining order shall remain permanent and shall not be dismissed by the court.
(II) Any motion to modify a restraining order filed by a restrained party pursuant to paragraph (a) of this subsection (17.5) shall 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) Except as otherwise provided in this section, the issuing court shall retain jurisdiction to enforce, modify, or dismiss a temporary or permanent restraining order.
(d) Any motion filed pursuant to paragraph (a) of this subsection (17.5) shall be heard by the court. The party moving for a modification or dismissal of a temporary or permanent restraining order pursuant to paragraph (a) of this subsection (17.5) shall affect personal service on the other party with a copy of the motion and notice of the hearing on the motion, as provided by rule 4 (e) of the Colorado rules of civil procedure. The moving party shall bear 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.
(e) In considering whether to modify or dismiss a restraining order issued pursuant to this section, the court shall consider all relevant factors, including but not limited to:
(I) Whether the restrained party has complied with the terms of the restraining order;
(II) Whether the restrained party has met the conditions associated with the restraining order, if any;
(III) Whether the restrained party has been ordered to participate in and complete a domestic violence treatment program provided by an entity approved pursuant to section 16-11.8-103 (4) (b) (III) (C), C.R.S., and whether the restrained party has completed the program;
(IV) Whether the restrained party has voluntarily participated in any domestic violence treatment program or other counseling addressing domestic violence or anger management issues;
(V) The time that has lapsed since the restraining order was issued;
(VI) When the last incident of abuse or threat of harm occurred or other relevant information concerning the safety and protection of the protected person;
(VII) 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 section 18-6-800.3 (1), C.R.S., other than the original offense, if any, that formed the basis for the issuance of the restraining order;
(VIII) 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
(IX) The circumstances of the parties, including the relative proximity of the parties' residences and work places and whether the parties have minor children together.
[(b) Either party may move at any time after the citation is issued or restraining order imposed to have the action dismissed. Grounds for dismissal may include but shall not be limited to:
(I) The plaintiff wishes to voluntarily withdraw the action.
(II) The defendant has moved more than 250 miles away from the plaintiff, or has left the state, or the country, and has not threatened, molested, or injured any other party, including the plaintiff, or the minor child of either of the parties for a period of more than six months; and there is no evidence to suggest that the defendant will threaten, molest, or injure any other party, including the plaintiff, or the minor child of either of the parties if the restraining order is vacated.
(III) Any other reason for dismissal the court finds acceptable that does not suggest clear and present danger to the plaintiff. The fact that the defendant uses guns or other potential weapons in his or her occupation shall not be construed as a clear and present danger to the plaintiff unless other evidence is brought forth to show such danger exists.]
(18) 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 burden of proof as described in subsection (4) of this section 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 the requirements set forth in this subsection (18).
(20) [
Enactment of this section shall not affect the effectiveness of any civil restraining order issued prior to July 1, 1999.
(a)
Restraining orders issued more than one year prior to enactment of this revision shall be considered null and void and all restrictions lifted unless the plaintiff can show cause why said order should be extended. Plaintiff will have one hundred twenty days after this law takes effect to file for continuance or file for another restraining order based on new and unrelated allegations.
]
(b) If a restraining order has previously been granted, within thirty days from the end of the order, the plaintiff may file for an additional one year extension. An extension shall be granted unless the defendant moves otherwise.
(c) A single one-year extension may be granted for an existing order.]
(21) (a) 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 section 13-14-101 (2); domestic violence as defined by section 18-6-800.3 (1), C.R.S.; stalking as defined by section 18-9-111, C.R.S.; or sexual assault as defined by section 18-3-402, C.R.S. Petitioners shall be provided the necessary number of certified copies at no cost.
(b) 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 section 18-6-800.3 (1), C.R.S.; stalking as defined by section 18-9-111, C.R.S.; or sexual assault as defined by section 18-3-402, C.R.S.
(c) 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.
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