Upset teenage boy at table with parents arguing in background.

Sadly, domestic violence and child abuse are facts of life for some families. And as we discuss in our Domestic Violence article in the Colorado Family Law Guide, as well as in a prior blog about the impact of violence on child custody, violence and abuse have very real impacts on child custody decisions in Colorado courts, including parenting time and decision-making.

And while domestic violence against a spouse may seem a separate offense than child abuse, as discussed below the Colorado Court of Appeals has stressed that the two may well overlap for family law purposes.

Domestic Violence Against the Other Parent

When a judge finds that one parent abused the other, not only does Colorado law provide for a laundry list of additional protections the court is required to consider, but the court cannot award joint decision-making between the perpetrator and victim unless the court also “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(a)(III).

So while joint decision-making is permissible when there has been domestic violence, there’s an additional hurdle before the Court can award it.

Child Abuse & Decision-Making

With child abuse, however, there can be no joint decision-making, even with special findings. C.R.S. 14-10-124(4)(a)(I) provides:

“If the court finds that one of the parties has committed child abuse or neglect, then it shall not be in the best interests of the child to allocate mutual decision-making with respect to any issue over the objection of the other party or the legal representative of the child.”

However, it’s important not to make an assumption that the abuser is the one carved out of decision-making – the statute simply says it cannot be joint, but as we discuss in our article, in extreme child custody cases Colorado courts have ordered that the child abuser have sole parental decision-making.

Distinction Between Domestic Violence & Child Abuse is Blurred

Per C.R.S. 14-10-129(a), domestic violence are acts or threats against an intimate partner, property or pet. Child abuse, by contrast, means an injury or threat of injury to the life or health of a child. C.R.S. 18-6-401(a).

Child Abuse vs Domestic Violence

Often this distinction is blurred – in a violent household, the aggressor may commit domestic violence against the other parent, not the child, however the child may be present and witness the violence. In that case, family law judges are required to consider whether witnessing such violence harmed the child’s health.

In a brand-new decision, the Colorado Court of Appeals considered a case where the mother had committed physical abuse against the father in the presence of the child. A.F.1In re: Parental Responsibilities of A.F., (Colo.App. No. 19CA1537, Dec. 3, 2020) (Unpublished Decision).

In that case, the trial court found that the mother had committed spousal abuse by physically assaulting the father. And while the child was present for the violence, the trial court found no child abuse since “nothing happened to her,” and ordered joint decision-making.

The Court of Appeals reversed, holding:

“Child abuse may involve the unreasonable placement of the child in a situation that poses a threat of injury to the child’s life or health. Because the court disregarded that part of the definition, the court committed legal error.”

A.F.2In re: Parental Responsibilities of A.F., ¶ 32 (Colo.App. No. 19CA1537, Dec. 3, 2020) (Unpublished Decision) (Cleaned Up) (Emphasis in Original).

The court then remanded the case to the trial court with explicit instructions to consider the impact on the child of witnessing the domestic violence:

“The court on remand should make findings on whether the child saw or heard the incident. And the court must bear in mind that “health,” as used in the statute, includes the child’s mental well-being. Based on its factual findings, the court shall make an explicit determination as to whether mother unreasonably placed the child in a situation that posed a threat of injury to the child’s life or health.”

A.F.3In re: Parental Responsibilities of A.F., ¶ 33 (Colo.App. No. 19CA1537, Dec. 3, 2020) (Unpublished Decision) (Cleaned Up).

The takeaway? While it is not automatically child abuse when a child witnesses one parent’s violence against the other, nor is it something the trial court can brush under the carpet. Rather, the court must make specific findings as to what happened, and whether any impact on the child did pose a threat of injury to the child’s mental well-being.

And the distinction between domestic violence and child abuse matters. In the A.F. case, the family law judge found sufficient cause to award joint decision-making, despite the mother’s domestic violence. But if the judge finds that the child suffered abuse by witnessing the violence, then joint decision-making is prohibited.

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