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xavierjd
xavierjd, Lawyer
Category: Family Law
Satisfied Customers: 3400
Experience:  20 yrs exp. in divorce, custody, visitation & support .
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My daughter lost custody of her six year old in Colorado family

Resolved Question:

My daughter lost custody of her six year old in Colorado family court. Although the father was able to present several witnesses to present his case, witnesses for her, including one expert witness, were not permitted to testify. The judge demonstrated his bias with comments throughout the trial. This appears to be a legal error, as well as judicial bias. Does she have legal grounds for an appeal to the Court of Appeals?
Submitted: 1 year ago.
Category: Family Law
Expert:  xavierjd replied 1 year ago.
Thank you for using JustAnswer.com It will be my pleasure to assist you today.

When did your daughter lose custody of her child?

Was your daughter able to present any of her witnesses?

Did the judge indicate why he wouldn't allow her witnesses to testify?

Thanks
Customer: replied 1 year ago.


Custody hearing was March 8.


My daughter was unable to present any witnesses, no testimony but her own.


Her expert witness was to be contacted by phone; her lawyer said he could not reach her, but the witness's phone records indicate no call was made. Three other witnesses were not allowed to testify; the judge did not indicate why they were not allowed to testify.


 


 

Expert:  xavierjd replied 1 year ago.
Hi John,

Thanks for the information.

But, why did your daughter lose custody? Was it because of a custody battle? an alleged abuse/neglect issue? etc.

Did your daughter's attorney object to not allowing your daughter's witnesses to be called?

Thanks
Customer: replied 1 year ago.


Divorce and custody hearing the same day. Husband based his petition on her past mental health history (once diagnosed as bipolar) and alleged instability, citing incidents from two to ten years prior. She was emotionally and sexually abused in the marriage and the child lived with her since her escape a year ago, but this was apparently not considered by the court.


I was not in the courtroom at the time but I understand that her attorney did not object.

Expert:  xavierjd replied 1 year ago.
Hi John,

I am so sorry for the tough situation that you and your daughter now find yourselves in.

I want to look up a few things and I will get back to you asap with an answer. It may take several minutes.

Thanks for your patience.
Expert:  xavierjd replied 1 year ago.
Hi John,

CAR 4 requires a notice of appeal to be filed within 45 days from entry of the order. Your daughter should get counsel to assist her in appealing any custody order as an appeal is a technical time consuming process. The ruling on not admitting relevant evidence may be a strong issue for an appeal.

Colorado laws state that it is in the best interest of all parties to encourage frequent and continuing contact between each parent and the minor children of the marriage after the parents have separated or dissolved their marriage. In order to effectuate this goal, Colorado laws and lawmakers urge parents to share the rights and responsibilities of child rearing and to encourage the love, affection, and contact between the children and the parents.

-From 14-10-124 of the Colorado Revised Statutes

Parenting Plan.

In cases involving child custody (whether contested or uncontested), both parties must submit a parenting plan or plans for the court’s approval that shall address both physical custody and visitation, and the allocation of decision-making responsibilities. If no parenting plan is submitted or if the court does not approve a submitted parenting plan, the court, on its own motion, shall formulate a parenting plan that shall address physical custody and visitation and the allocation of decision-making responsibilities.

Colorado Laws on Best Interest of the Child.

The court shall determine the allocation of parental responsibilities, including physical custody and visitation, and decision-making responsibilities, in accordance with the best interests of the child giving paramount consideration to the physical, mental, and emotional conditions and needs of the child. In determining the best interests of the child for purposes of custody, the court shall consider all relevant factors, including the following guidelines under Colorado laws:

  1. The wishes of the child’s parents as to custody;
  2. The wishes of the child if he or she is sufficiently mature to express reasoned and independent preferences as to the custody and visitation schedule;
  3. The interaction and interrelationship of the child with his or her parents, his or her siblings, and any other person who may significantly affect the child’s best interests;
  4. The child’s adjustment to his or her home, school, and community;
  5. The mental and physical health of all individuals involved, except that a disability alone shall not be a basis to deny or restrict parenting time;
  6. The ability of the parties to encourage the sharing of love, affection, and contact between the child and the other party;
  7. Whether the past pattern of involvement of the parties with the child reflects a system of values, time commitment, and mutual support;
  8. The physical proximity of the parties to each other as this relates to the practical considerations of parenting time;
  9. Whether one of the parties has been a perpetrator of child abuse or neglect, which shall be supported by credible evidence;
  10. Whether one of the parties has been a perpetrator of spouse abuse, which factor shall be supported by credible evidence; and
  11. The ability of each party to place the needs of the child ahead of his or her own needs.

Laws Regarding Legal Custody.

The court, upon the motion of either party or its own motion, shall allocate the decision-making responsibilities between the parties based upon the best interests of the child. The court may award decision-making responsibilities (legal custody) solely to one parent or jointly between the two parents. In determining the best interests of the child for purposes of allocating decision-making responsibilities, the court shall consider, in addition to the factors listed above, the following:

  1. Credible evidence of the ability of the parties to cooperate and to make decisions jointly;
  2. Whether the past pattern of involvement of the parties with the child reflects a system of values, time commitment, and mutual support that would indicate an ability as mutual decision makers to provide a positive and nourishing relationship with the child;
  3. Whether an allocation of mutual decision-making responsibility on any one or a number of issues will promote more frequent or continuing contact between the child and each of the parties;
  4. Whether one of the parties has been a perpetrator of child abuse or neglect that is supported by credible evidence. If the court makes a finding of fact that one of the parties has been a perpetrator of 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 representative of the child;
  5. Whether one of the parties has been a perpetrator of spouse abuse that is supported by credible evidence. If the court makes a finding of fact that one of the parties has been a perpetrator of spouse abuse, then joint custody over the objection of the other party shall not be in the best interests of the child, unless the court finds that the parties are able to make shared decisions about their children without physical confrontation and in a place and manner that is not a danger to the abused party or the child.

The court shall not consider conduct of a party that does not affect that party’s relationship to the child, and shall not presume that any person is better able to serve the best interests of the child because of that person’s sex. If a party is absent or leaves home because of spouse abuse by the other party, such absence or leaving shall not be a factor in determining the best interests of the child.

 

If your daughter believes that the judge was truly biased against her, she can file a Complaint with the Colorado Judicial Commission. Below is a link to the Commission along with instructions as to how to file a Complaint.


http://www.coloradojudicialdiscipline.com/FAQS.html

If your daughter believes that her attorney committed any misconduct for failing to object to important legal rulings involving evidence, witnesses, etc., she can also file a Complaint against the attorney with the Colorado Supreme Court. Below is a link as to how your daughter can begin the Complaint process.

http://www.coloradosupremecourt.com/Regulation/Complaints.htm

Importantly, your daughter should contact an attorney who specializes in Appellate law as soon as possible. If the deadline passes, she will NOT be able to appeal the decision for any reason. She can still file a complaint against the judge and/or her attorney while the appeal process is ongoing. However, her appellate attorney would be the best person to speak with regarding the timing of any complaint.

I hope you find this information useful.

My goal is to provide you with excellent service – if you feel you have gotten anything less, please reply back. I am happy to address follow-up questions. If you are satisfied with my answer, please rate it as "excellent" or in another positive manner. That is the only way that I can get credit for answering the question.

Thank you for your business!

XavierJD
Customer: replied 1 year ago.


Thank you for your response.

Expert:  xavierjd replied 1 year ago.
Hi John,

You are very welcome.

My goal is to provide you with excellent service – if you feel you have gotten anything less, please reply back. I am happy to address follow-up questions. If you are satisfied with my answer, please rate it as "excellent" or in another positive manner. That is the only way that I can get credit for answering the question.

Thank you for your business!

XavierJD
xavierjd, Lawyer
Category: Family Law
Satisfied Customers: 3400
Experience: 20 yrs exp. in divorce, custody, visitation & support .
xavierjd and 3 other Family Law Specialists are ready to help you
Expert:  xavierjd replied 1 year ago.
Hi Jan,

Thank you so much for the "excellent service" rating! It is greatly appreciated and I am glad that you found the information useful.

If you have future questions, you can specifically request me by name as the expert.

Thanks again,

xavierjd

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20 yrs exp. in divorce, custody, visitation & support .