Protecting children from potential child abuse in Colorado has long been the goal of judges in custody cases. In our Domestic Violence & Child Custody article in the Colorado Family Law Guide, there are several ways which courts are already required to consider allegations of spousal or child abuse, sexual abuse, and more.
Moreover, beyond the obvious negative impacts of child abuse on parenting time, Colorado law limits joint decision-making of an abusive parent:
- Child Abuse. A parent who has committed child abuse or neglect cannot share joint decision-making over the other parent’s objection. C.R.S. 14-10-124(4)(a)(I).
- Domestic Violence. A parent who has committed domestic violence against the other parent cannot share joint decision-making without evidence that the parents have the ability to cooperate on decisions. C.R.S. 14-10-124(4)(a)(III).
- Sexual Abuse. There is a presumption that a parent who has committed sexual abuse against the other parent should not play any role in decision-making. C.R.S. 14-10-124(4)(a)(III).
On May 25, 2023, the Colorado governor signed “Kayden’s Law”, House Bill 23-1178, which expands the role of addressing child abuse in the family law court system by adding C.R.S. 14-10-127.5 to the domestic relations statutes.
Declarations re: Child Abuse Critical of Courts
The Colorado Assembly starts with several findings in C.R.S. 14-10-127.5(1)(a) about how widespread child abuse is, and how the Colorado courts are not adequately addressing the problem. Among the recitals are:
- About 15 million children are exposed to domestic violence or child abuse annually.
- Most abuse is perpetrated by a parent.
- The risk of abuse increases after separation.
- Courts believe just one-quarter of abuse claims, regularly discounting them when the abuser claims parental alienation.
- Courts grant custody to “unprotected parenting time” to abusers.
- Courts and even parenting experts often lack the training and expertise to address child abuse.
What’s surprising is not the existence of some findings – often statutes will include a preamble reciting the reasons for acting – but how openly the Assembly is slamming Colorado family law courts, implying judges are siding with abusers over the victims.
Expands Child Abuse Evidence Courts Must Consider
The Colorado Rules of Evidence generally govern what finders of fact are allowed to consider in our courts. This statute expands that evidence in cases “in which a claim of domestic violence or child abuse, including child sexual abuse, has been made to the court.” Sometimes, our evidence rules mean that relevant evidence may be excluded if it is unreliable (e.g. hearsay).
In addition to any other relevant evidence, the new C.R.S. 14-10-127.5(3)(a) requires courts to consider:
- Testimony from an expert who has expertise working with victims of domestic violence or child abuse.
- Protective orders against the accused party.
- Arrests or convictions of the accused party for domestic violence, sexual violence or child abuse. As we describe in our domestic violence article, courts are already required to consider evidence of abuse, and while an arrest is not normally considered evidence (a conviction is, otherwise the underlying facts which led to the arrest are evidence), in reality family law judges often consider the fact of arrests anyway, even with no conviction. This act now mandates that they do.
- Documentation, including letters from victim advocates, medical records, etc. Normally, letters would be excluded as hearsay, this bill changes that.
Orders Where Finding of Domestic Violence or Child Abuse
Kayden’s Law limits steps courts can take to rehabilitate the relationship between the abuser and the child, with C.R.S. 14-10-127.5(3)(b) prohibiting judges from ordering any of the following:
- Limiting contact or removing a child from the “protective party” (i.e. the non-abuser) “solely to improve a deficient relationship with an accused party.”
- Order reunification treatment to improve the relationship between the child and accused party without scientifically valid proof of its safety and effectiveness.
- Order reunification treatment which “is predicated on cutting off the relationship between a child and protective party.”
- Before orders to “remediate” a child’s resistance to seeing the accused party, an approved mental health professional must verify the accused party accepts responsibility for his actions which negatively affected the relationship.
And if treatment is ordered, the accused party must accept responsibility for his/her actions which negatively affected the relationship, to be verified by the mental health professional before
Child Abuse Training Requirements
C.R.S. 14-10-127.5(5)(a) sets up formal training requirements for court-appointed child custody experts such as Child & Family Investigators (CFIs), Parental Responsibilities Evaluators (PREs) and Child’s Legal Representatives (CLRs):
- Initial training of 20 hours, then
- Ongoing training of at least 15 hours every five years.
The training must focus on domestic violence and child abuse, and include topics such as emotional abuse control, bias, and the cycle of violence.
Note that existing Chief Justice Directives already required some training for various parenting experts, but this bill codifies it into law.
Final Thoughts on Child Abuse Legislation
Note that not all child abuse is obvious, and it does not necessarily involve physical abuse against the child in question. Graham.Law attorneys have successfully limited the parenting time of abusers who commit spousal abuse in the home in the presence of the child, even though they may not inflict actual violence on the child.
We have written on child abuse in custody cases several time previously, including that witnessing domestic violence can be child abuse, even when not directed at the child; that courts must consider abuse towards other children, and on the differences between child abuse and discipline. So there may be child abuse in more cases than a parent may think.
The takeaway from the new child abuse law? Kayden’s Law has attracted national attention, including an article in the ABA Journal, and is groundbreaking as a legislative statement against abuse and the practice of some judges to accept claims of alienation in cases where abuse is more likely the root of the problem. And the law is important by restricting reunification therapy, which has long been an avenue to force children to reconcile with an unrepentant abuser.
The evidence and training aspects of the law do not really change much for those of us who have litigated child custody cases involving child abuse – at least with most judges. And most credible experts already have DV and child abuse training, so the training will serve more to raise awareness where it may be lacking, rather than implementing a wholesale change in how many judges and child custody experts already operate.
Award-Winning Southern Colorado Child Custody Lawyers
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