Prisoner looking out window

As a family law firm, it is rare that we report on criminal cases, but People v Zoller is one of those times where criminal law and family law intersect. Specifically, to what extent does a mandatory protection order (MPO) issued by a judge in a criminal case override a defendant parent’s constitutional right to contact with his child?

In Zoller, the father was charged criminally with domestic violence for seriously beating his wife in front of their young child. Pursuant to C.R.S. 18-1-1001, the judge in the criminal case issued a mandatory protection order preventing him from “contacting directly or indirectly communicating with” his minor daughter, as she was both a victim as well as a witness to his DV crimes. That MPO would remain in effect until he completed his entire sentence, including both prison and his subsequent parole.

Note that while they serve similar purposes, a criminal mandatory protection order should not be confused with a civil protection order (AKA “restraining order”) which we discuss in the Colorado Family Law Guide.

Colorado’s Mandatory Protection Order in Criminal Cases

Colorado law provides for a mandatory protection order to protect witnesses or victims of someone charged with a crime, which remains in effect until the case is completed:

“There is created a mandatory protection order against any person charged with a criminal violation of any of the provisions of this title 18, which order remains in effect from the time that the person is advised of the person’s rights at arraignment or the person’s first appearance before the court and informed of such order until final disposition of the action. Such order restrains the person charged from harassing, molesting, intimidating, retaliating against, or tampering with any witness to or victim of the acts charged.”

C.R.S. 18-1-1001(1) (Emphasis added)

The term “final disposition” means release from probation, if that was ordered in lieu of incarceration, and if prison was ordered, “final disposition” is not just release from prison, but “discharge from parole supervision” after prison. C.R.S. 18-1-1001(8)(b). This means an MPO can remain in effect for years after a crime was committed.

Mandatory Protection Order Prevented Contact with Child

In cases involving domestic violence, a criminal judge also has the option of broadening the MPO in various ways, including “to refrain from contact or direct or indirect communication with the alleged victim or witness” (C.R.S. 18-1-1001(3)(a)(II)). The judge did so in this case, and prohibited the father from having any contact with his daughter.

Trial Court Denied Father’s Request to Modify MPO

The father was released after serving less than two years of his 5-year sentence of incarceration, but while he was still on parole.

Two men sitting at table with handcuffs between them.

Shortly thereafter, pursuant to C.R.S. 18-1-1001(6) he requested that the court modify the mandatory protection order to start allowing contact with the child. The basis of his request was that the MPO violated his constitutional rights as a parent.

Often child custody matters are handled by a domestic relations judge, and criminal judges will defer to them. But in this case the criminal judge declined to do that, with findings on how dangerous the defendant was, and ruling that the MPO would remain in effect until he had completed the parole part of his sentence.

The father appealed, making the same constitutional argument to the Colorado Court of Appeals.

Appeal – Parenting is “Fundamental” Right

The court of appeals focused not on the wisdom of the MPO, but on the issue raised by the father – his constitutional right to be a parent as set forth in both U.S. and Colorado Supreme Court decisions:

“The United States Supreme Court has long recognized a parent’s interest in the companionship, care, custody, and control of his children as a fundamental substantive due process right.”

Zoller, ¶ 18.

Stricter Scrutiny Required to Infringe Right as Parent

The daughter was not just any witness covered by a mandatory protection order – she was the father’s child, and his conviction did not forfeit his constitutional right to be a parent:

“The no-contact order challenged here infringes on Zoller’s fundamental right to parental association. For the MPO provision to survive a constitutional challenge, we conclude that the district court must find that (1) it is justified by compelling circumstances, and (2) the purpose of the order cannot be accomplished by less restrictive means.“

Zoller, ¶ 20 (Emphasis added).

The trial judge appropriately considered the father’s violence and the need to protect society from violent criminals, and made sufficient findings of compelling circumstances to justify infringing the father’s right to parent his child. Zoller, ¶ 24.

But this is only the first part of the inquiry – while an MPO was still warranted to protect the daughter from the father, the trial court should have considered whether the child’s safety would be threatened by allowing some contact, such as remote video communications.

Family Law Statutes Not Override Mandatory Protection Order

The court of appeals rejected the father’s request to apply family law statutes to his situation – i.e. to treat him as a “normal” parent – instead of applying the criminal MPO standards. Recall that the trial judge declined to defer to the domestic relations court, and maintained jurisdiction over the issue of whether the father should have contact with the child. The court of appeals was fine with that.

The father argued that any modification of his contact with the child should be considered a child custody issue, and governed by the C.R.S. 14-10-129 standard required to modify parenting time. That argument went nowhere:

“Section 14-10-129 does not govern the operation or modification of MPOs under section 18-1-1001. Thus, it would be inappropriate for the district court to make findings under that statute in the context of this case.”

Zoller, ¶ 29.

In short, while the court is required to consider the father’s basic constitutional rights, a criminal defendant would not be afforded the full procedural rights of a parent to have family law statutes apply while he was still subject to an MPO.

Conclusion – Limited Parenting Victory for Father

The appellate court did not expressly order any specific communications; on the contrary, it expressed confidence that the evidence would support a determination that the MPO did not infringe the father’s constitutional rights as a parent more than was necessary. It’s more of a technical ruling – the trial court is required to check a box it failed to check, before denying again the father’s request to modify the mandatory protection order.

Time will tell if the father won the battle, but ultimately lost the war.

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Mandatory Protection Order

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