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S. Kincaid
S. Kincaid, Family Law Attorney
Category: Family Law
Satisfied Customers: 2512
Experience:  I have practiced family law since 1996, focusing on child custody and domestic violence
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I reside in Colorado, Larimer County. Today I had a emergency

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I reside in Colorado, Larimer County. Today I had a emergency custody hearing that was brought on by the Department of Social Services. Unfortunately, I had another court date in another county that conflicted with this court date and I was not able to attend. I was however, able to get a lawyer in their (even though I only had less than 24 hours notice of the hearing). Unfortunately, he was unable to get a continuance, and ultimately, due to a pending DV charge and a pending Violation of Restraining Order charge I was ultimately “granted” a no contact order for my children. Meaning, I am unable to be within 500 feet of them, I am unable to see them at school (I have been having lunch with them at school the last few days) and I now have to have supervised visitation under the county’s supervision. I also have to do random u/a’s. I could care less about the u/a’s. I already took one for CPS a week ago that was negative and I do not use drugs. I am just mortified that they were able to grant this restraining order (I cannot go to my home because the kids are there) based on 2 charges I have plead “not guilty” to and am awaiting trial on. The alleged DV did not occur when the children were present, and the restraining order that was violated has now been vacated, however, the violation I still have to face (I did plead not guilty on that today as well).

Is there anything I can do? I now have court on October 4th and an open Dependency and Neglect case (upon my request). I was tired of CPS calling me asking me to go do this and that (which I did) and ultimately, per counsel’s advisement, I requested to no longer be a part of any “voluntary” case. However, the father of the children (who is the alleged victim in the DV case) is home with the children and I am not allowed to speak with him and now my children (unless supervised). Of course, I’m going to follow the judge’s orders but is there anything I can do? Any help is appreciated. The strange part in all of this is that 2 of the 4 children involved in the case aren’t even biologically related to the father of the other 2 but somehow he was able to keep them? I did file an APR on the 18th of the month, but since I had to put in a waiver of fees it is still waiting to be granted.

I do have an active parenting plan for the 2 children (parenting plan is in another county in Colorado) but for some reason my parental rights are being totally violated.

I am so confused, hurt, and angry. Any advice would be greatly appreciated. I know I have the right to a PD and hopefully, I can afford an attorney who I can rely on more than a PD (no offense to them just case overloaded) and I really want my kids back ESPECIALLY the 2 that aren’t his. However, at this time, I am unsure I will be able to get an attorney :( I will however, do what it takes to get one. One way or another.
Submitted: 7 years ago.
Category: Family Law
Expert:  S. Kincaid replied 7 years ago.

Although this man is not the biological father of two of your children, the State of Colorado can presume that he is their father. If a man receives a child into his home when the child is still a minor and openly declares him or her as his child, then Colorado law presumes paternity. You can attempt to establish or dis-establish paternity over those children. However, if the children's biological father is not in their lives, the courts can determine that this man is the legal father, even if he is not the biological father of your children.

If you click here, you can read about a court case in Colorado that explains this. If the biological father has rights and is involved in the children's lives, it is far less likely that a non-biological father would be declared the legal father.


DSS is not required to wait until a conviction occurs to remove children from the custody of a parent. To prove a case against you, DSS only needs to prove that there was abuse/neglect/mistreatment by a preponderance of the evidence (which is like saying that it is more likely than not that the abuse/neglect/mistreatment occurred.) (Domestic violence on one's partner can be considered a form of abuse.) This is a much lower standard than is required in a criminal case, where the state must prove beyond a reasonable doubt that you committed a crime. Therefore, even if you are acquitted of the criminal charges, the dependency court or family court can make a finding that there was abuse/neglect/mistreatment. It will still be beneficial for you to be acquitted, because then you still have the opportunity to defend yourself in the child custody case, but if you are convicted in the criminal case, the dependency court must accept that finding of guilt.


Because of the urgency of abuse and neglect issues, dependency court is authorized to make orders with very little notice.

The best thing you can do is just what you said you would do - obey the orders completely. Make sure that you exercise as much supervised visitation as you possibly can. If you do not exercise your visits, it will be held against you as though you don't care, so you MUST be proactive in getting the visits going. Keep doing everything the DSS tells you to do, be cooperative and friendly, even when you feel that they are being very unfair.

I hope this is enough information to get you started. There is no magic information I could give you to make the process faster or fairer, but patience and cooperation are key. I would be happy to answer follow up questions you have. If choose not to request a refund of your JustAnswer deposit, I would appreciate if you could click on the green ACCEPT button as I do not get credit for my work until you do so. Thank you and good luck.
Customer: replied 7 years ago.
Thanks so much for your answer. The biological/nonbiological thing is very disconcerting. The children themselves, do not know him to be his father, they want to be with me and the last time I saw them they cried so hard and asked me why they were with him when he’s not even their dad. Their are abuse allegations I am making against him (I have a recorded video of the twins-the two that aren’t his) that has the twins in it talking about the physical abuse. This was reported and completely overlooked by CPS. Also, our son, needs major medical attention to his head, he has been so unkept that his head is itchy and from scratching it has blistered, and turned into bloody sores (I do have pictures). I have MAJOR concerns with the children being with him and have openly expressed my concerns with CPS and they have overlooked them all.

The children that aren’t his are merely there to take care of the younger children and are made to do the laundry, cook, bathe, and care for the younger 2. He uses them and the twins have openly stated this to CPS. They have also openly stated their fear for him, and their incredible want to be with me. They are 11. They cried so hard the other day at school the teacher had to take one of them out of class she cried so hard. They are so confused. I am no longer allowed to go to the school to see them, although I was with much urge from the teachers. The teachers also are aware of this and no one understand how or why this is all happening. The kids are such victims. I feel so bad for them.

The children stated to me that they know they aren’t his and that they aren’t being treated well because of that. No surprise given the past history. I have so much on this man, doctors records, school records, lawyers testimonies, videos of him smoking and reviewing marijuana dispensaries while caring for my children, landlords statements saying how filthy he was, family members who have seen his violence towards them. And yet, nothing on me. I am being alleged to be a druggie (although I took a drug test for CPS which came back negative) and I am being alleged to have violent behavior although I provided them with proof that I just finished a 9 month anger management class in March with compliance. However, the father has had 2 u/a’s both positive for THC and his girlfriend who watches my youngest who’s not in school is showing positive for prescription amphetamines. Am I missing something here?

I just don’t understand. Also, the father was just released from custody for kidnapping the kids in June. His charges were dismissed (due to coercion from his lawyer and his family) and now I am being charged with false reporting.

Blah, this sucks.
Customer: replied 7 years ago.
Also, how can I disestablish paternity? Is this a form I can submit to courts?
Expert:  S. Kincaid replied 7 years ago.
Yes. Click here for a website with the forms for Disclaiming Paternity. It might also help to establish paternity with the biological father (if possible.) Understand that there may be ways for your ex to get custody without being the legal father (such as if he gets a foster care license) but you would have a significantly greater chance of regaining custody of them if he was determined not to be their legal father.

Your situation sounds just horrible and all I can say is that the people who are supposed to be working towards justice do not always do so. DSS is probably angry because you refused to cooperate with their "voluntary" plan. That being said, you still have the right to a trial in front of a judge where you may present all of your admissible evidence. It sounds like you have a lot of evidence that will really help your case. I wish you the best.

Again, if you do not plan on requesting a refund of your deposit, I would appreciate if you could click on the green ACCEPT button so that I may receive credit for my work on this case. Thank you and good luck!
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