Understanding Civil Protection Orders
Whether you're the party requesting a civil protection order or the restrained party defending against one, there are a few things you should understand and consider before attempting to represent yourself. When finding yourself in these situations, it is always best to consult an attorney.
C.R.S. 13-14-100.2 allow Colorado citizens access to civil protection orders to encourage safety and reduce violence or the threat of violence. In particular, civil protection orders protect against domestic violence (C.R.S. §13-14-101(2)), stalking (C.R.S. §18-3-602), sexual assault (C.R.S. §18-3-402(1)), unlawful sexual contact (C.R.S. §18-3-404) and abuse of an elderly or at-risk adult (C.R.S. §26-3.1-101(1) & (7)) and/or physical assault, threats of violence or other circumstances which would lead to violence. C.R.S. 13-14-101
When seeking a civil protection order, you do not need to file charges or report the conduct to police (C.R.S. 13-14-104.5). Rather, you may file a complaint/motion in the county court where you reside or work. Your complaint/motion must be carefully drafted, with specific details of acts that fall into the categories listed above and there is a requirement to show that imminent danger exists to you and others listed (like your children).
When you file your complaint/motion, you will go in front of the judge/magistrate the same day, and you may be asked some additional questions about your complaint/motion. The person to be restrained does not need to be present when requesting the temporary protection order.
If a temporary protection order is granted, to convert a temporary protection order to a permanent protection order, the restrained party must be personally served (by a third party) with a copy of the complaint, a copy of the temporary civil protection order, and a copy of the citation.
The judge or magistrate sets a return date (where you request the temporary protection order be made permanent) not more than fourteen days after issuance of the temporary protection order and citation (C.R.S. §13-14-104.5(10)). As the protected party, you may ask the court for continuances as necessary if you are unable to serve the other party.
On the return date, several things may happen, the court may: (1) grant one two-week continuance for good cause (for example, you or the restrained party are in the process of hiring an attorney), (2) allow the parties to mutually agree to continue the hearing up to a year and thereby extend the temporary protection order for a year, (3) dismiss the temporary protection order, or (4) expect the parties to move forward with the protection order hearing and deny any continuance of the hearing.
In some cases, it may be advantageous to request to continue the temporary protection order. A continuance of up to one year is generally permissible where the parties mutually agree, so long as the court believes it is in the best interests of the parties (C.R.S. §13-14-106(b)). That determination may vary from jurisdiction to jurisdiction. Therefore, even where parties mutually agree the judge may not necessarily allow a lengthy continuance.
In other circumstances, once a temporary protection order is granted, the protected party may want to dismiss the civil protection order but still wish to have no contact with the restrained party. With the assistance of counsel, the parties may draft and stipulate to a no contact order, which the judge may then make an order of the court.
If you move forward with the request for a permanent protection order, you must prove two things, by preponderance of the evidence: (1) that the restrained party committed acts constituting grounds for issuing the temporary protection order, and (2) that unless restrained will continue to commit such acts or acts designed to intimidate or retaliate against you (C.R.S. 13-14-106).
Commonly, the judge or magistrate will expect a pro se or self-represented party to demonstrate and develop evidence in the same fashion as an experienced attorney. The judge will want to see evidence beyond hearsay and personal concern to substantiate the issuance of a permanent protection order and this is often a difficult burden to meet. If you are successful, the judge or magistrate will order that your temporary civil protection order be made permanent or enter a permanent civil protection order that is different from the temporary civil protection order.
Consequently, if you are on the other side of a civil protection order, and are the restrained party, you may not only be restrained from contacting the protected party, but you may be excluded from your home and access to your children, your work, as well as being restrained from the purchase or possession of firearms and ammunition (C.R.S. 13-14-105.5).
In cases where you are excluded from your home, this can take effect immediately and the only way you may be allowed back to your home is with a civil assist from a police officer for a very short period to gather some needed belongings.
In cases where you cannot purchase or possess firearms and ammunition, the judge will also order you to relinquish any firearms or ammunition currently in your possession (C.R.S. §13-14-105.5(2)). The effect is immediate and the consequence may be detrimental to your career or career prospects. Military and civil law enforcement personnel should carefully consider the impact to their career when defending against a permanent protection order. Therefore, hiring an attorney may play a crucial role in whether a permanent protection order is granted or denied.
Where the parties involved are also involved in a domestic dispute (divorce, child custody, etc), the court will likely hear the civil protection order matter in your domestic relations case rather than opening a separate county court case. In these cases, the court may modify the civil protection order to allow the parties to communicate regarding the domestic case or any children involved (C.R.S. §13-14-108) Civil protection orders occur all too often in the context of domestic disputes. This can have a devastating effect on you, your children, your routine, and your life.
Nothing prevents the restrained party from requesting a modification or dismissal of a temporary or permanent civil protection order. However, once a permanent protection order has been issued or a motion for modification or dismissal is filed, the restrained party must wait two years to file another motion to modify or dismiss with the court (C.R.S. 13-14-108).
The bottom line on civil protection orders is Colorado law allows for those seeking protection to obtain protection through a simplified civil process. However, making a temporary protection order permanent is not at all easy and may require advisement or assistance of experienced counsel. Further, failing to properly defend against a civil protection order may subject you to consequences you may wish to avoid. The cost of counsel should be weighed heavily against the implications of failing to properly prepare and proceed with a protection order hearing whether you are the party to be protected or the party to be restrained.
For court information on civil protection orders, visit https://www.courts.state.co.us/Forms/Forms_List.cfm?Form_Type_ID=24
Workers' Compensation Penalties
In our practice, we find that what injures small business owners and businesses most are the pitfalls they fail to see coming. Running a small business in the Colorado is not a simple proposition. While a small business owner may have a strong grasp on managing the day-to-day operations of the business, a small business owner often does not have the experience managing regulatory requirements. Penalties for which can end the business and bankrupt the owner. Our firm has worked with a number of small business owners, who have failed to juggle compliance issues and have received fines from the State of Colorado equating to hundreds of thousands of dollars.
Colorado small business owners are often not aware of the requirement to carry workers' compensation coverage or whether the requirement applies to their business. As a general rule, if your business is registered with the State of Colorado and you employ another or you draw W2 income from your business you should carry workers' compensation or where possible complete an exemption with your insurer and provide that exemption to the Division of Workers' Compensation. If your business falls within the umbrella of construction, then you have to carrier coverage regardless of whether you have employees. Additionally, hiring independent contractors does not shield you from workers' compensation liability, when hiring independent contractors, it's the employer's duty to ensure the contractor is properly insured. This can be done by requesting current certificates of insurance from the contractor.
Under the existing law, small business owners are liable for fines up to $250.00 a day for initial violations and up to $500.00 dollars a day for subsequent violation (see C.R.S. §8-43-409). The Division of Workers' Compensation does not have to find that the employer intentionally violated the regulatory requirement to carry workers' compensation insurance. Rather, the Division only needs to show an employer failed to carry coverage during a period of time that it was statutorily obligated to do so. Furthermore, under the existing law, the Division does not have a duty to inform an employer of a mounting penalty and has a record of not letting business know of the fine until years after non-compliance has begun. The fine has no statute of limitation limiting the fine nor a ceiling beyond which the Division will cap the fine. The result has been fines accumulating to over $800,000.00. Recently, fines like these have made news throughout Colorado.
While Colorado Revised Statutes (C.R.S.) §8-40-102, states the purpose of the Workers' Compensation Act of Colorado is to ensure “the quick and efficient delivery of disability and medical benefits to injured workers at a reasonable cost to employer…,” the penalty provisions of the statute threaten to close small business due to the heft of the fine. The penalty provisions don't differentiate between a businesses with one employee or businesses with one hundred employees; a small business will be fined in the same way as a Walmart. Thus, for small businesses with small profit margins, fines for failure to carry workers' compensation coverage has created a two-strike system in Colorado for small businesses. The Division is generally willing to settle an initial fine, but subsequent violations are generally not as easy to resolve and the fine is not uncommonly shocking to the conscience. It should be noted that if an employer has had an employee injury during the period of non-compliance, then the Division will not negotiate a reduction of the fine.
An employer may reach out to the Division of Workers' Compensation to attempt to negotiate a fine, but that's not recommended. Communication with the Division may subject the employer to a higher fine and fail to preserve issues on appeal. The nature of the fine is such that the initial notification from the Division of the fine begins an adversarial process where the employer needs to carefully navigate in order to protect and preserve due process rights. Generally speaking, administrative agencies, like the Division of Workers' Compensation, have their own internal set of rules and provided wide latitude. Therefore, before attempting to appeal to or negotiate fines like these, an employer should consult an attorney experienced with regulatory fines, as failure to properly manage the process following the fine could end in ruin of the business.
Think Your Adult Child Doesn't Need An Estate Plan? Think Again.
Your child is now an “adult” but they will always be your baby. Are you in a position to care for them during an emergency? If he or she does not have certain estate planning documents, you may not be able to help your child when you are most needed.
In legal terms, once a person reaches the age of 18 he or she is an adult – with all the rights and privileges that go along with adult status. These rights include the right to privacy. While we often think of the right to privacy as related to personal decisions, it also covers medical records, through laws such as the Health Insurance Portability and Accountability Act (HIPAA), and financial records.
What does this mean for you? This means that once your child reaches the age of 18, you are no longer entitled to see their medical or financial records or make decisions on their behalf – even if they are unable to do so for themselves. If your child lost the ability to make or communicate decisions, medical professionals may refuse to consult you on important medical decisions or release information to you. Some states have laws that authorize particular people in a particular order to act as substitute decision makers for an incapacitated patient. Colorado law does not have such a list of substitute decision makers. Instead, before they become incapacitated, individuals should appoint a substitute decision maker.
Financial institutions may refuse to release information to you as well – preventing you from paying your child's rent, insurance, car payment and bills in the event your child is incapacitated.
This is why your adult child needs an estate plan. Many young adults do not think about estate planning because they may not own much property. However, it is critical for young adults to set up a basic estate plan that appoints trusted individuals to make medical and financial decisions in the event they are unable to do so. Each case is different, but an adult child's estate plan will most likely include:
- Durable Medical Power of Attorney
- HIPAA Release
- Living Will (Advanced Healthcare Directive)
- Durable Financial Power of Attorney
Pierce Elliott Law, PLLC strives to protect families through all situations they may encounter. Our experienced attorneys can help you and your adult child put in place an estate plan based on your circumstances to ensure you can care for them as you always have. Contact our office today to set up an appointment with a knowledgeable and compassionate attorney to discuss your adult child's estate planning needs.
Your Mediation Questions Answered
What is mediation?
Mediation is a type of alternative dispute resolution process used in an effort to avoid an expensive court battle. Mediation is the attempt to settle a legal dispute through active participation of a neutral third party (mediator) who works to find the points of agreement and help those in conflict agree on a fair result. It is available as an option either before a lawsuit is filed or during any point in an ongoing lawsuit before a judgment is entered.
Who does the mediator represent?
The mediator is a neutral third party, which means he or she does not represent anyone involved in the dispute. Parties can choose to hire their own attorneys to represent them during mediation if they so desire, but attorneys are not required to participate in mediation.
What is the role of the mediator?
The mediator's role is to help the disputing parties attempt to reach an agreement they both feel is fair. A mediator does not give legal advice but may make suggestions in order to help the parties reach an agreement.
What qualities should I look for in a mediator?
You should find a mediator who you feel will be fair and honest. A good mediator will help the parties to keep the issues in perspective and propose solutions that the parties may not have thought about on their own, in addition to promoting a calm and collaborative environment.
What are the benefits of mediation?
Most clients see the biggest benefit to a successful mediation as the time and financial savings they gain. If both parties are willing to work to come to a solution, a legal dispute can be resolved in as little as a single mediation session. This will alleviate the costs typically incurred during a lengthy court proceeding such as filing fees, attorney fees, and time taken off work to attend court dates. Another benefit to mediation is that it can be a much lower conflict situation than an adversarial court proceeding which reduces the stress and anxiety many people feel when faced with a lawsuit. Additionally, whether an agreement is reached or not, the offers and statements made during a mediation session are confidential. This rule is to promote attempts to reach a settlement out of court and prevents anything offered in mediation from being used against you if the dispute goes to court.
What are the risks of mediation?
The main risk of choosing mediation is that there is no guarantee it will be successful. The success of mediation is completely reliant on the parties involved. If the parties are unable or unwilling to agree on any issues, the parties may still need the adversarial court process.
What types of disputes can be resolved through mediation?
Nearly anything! While mediation is not utilized in criminal proceedings, it is common in many civil cases and even required at many points in the domestic lawsuit process.
Katie S. Pierce is a trained mediator. She volunteers with Colorado Mediation Services and regularly attends Continuing Legal Education session on the topic. To retain Ms. Pierce as a mediator, please contact Pierce Elliott Law, PLLC.
This blog is for informational purposes only. It is not legal advice. Your particular situation requires specific advice that takes into account the specific facts of your situation, your needs and other factors. The appropriate legal advice for your situation may be different from the general information provided. Pierce Elliott Law, PLLC cannot be responsible for your decision to use information found on the internet instead of hiring an attorney.
The legal information presented is based on Colorado law and Colorado courts. Although federal law may be discussed here, the law may be applied or interpreted differently by both federal and state courts outside of Colorado. Do not assume the information presented here is true for individuals or entities in other states.
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