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February 10, 1999 Issue Backgrounder By Ed Lederman Synopsis: If there is any area of the law that needs clarifying and rationalization it is the law of domestic violence restraining orders. On the surface HB 1204 attempts to do just that. Its bill summary states that it "Consolidates the various types of civil restraining orders into a single type of restraining order." But alas it does not consolidate. Rather, on a procedural level it adds to the clutter and confusion plaguing the area of domestic restraining orders. More importantly, on a substantive level it takes a very large step in the wrong direction: It blends the concept of physical violence with that of "emotional harm." It allows a person to be ejected from his own home, without a prior opportunity to present his side to the court. Sticks and Stones May Break My Bones, but Words Will Never Hurt Me: As the schoolyard truism suggests, there is an immense and important distinction between physical harm/danger and emotional harm. A certain amount of nagging and bickering which is part of any marriage, at least on this planet, may on certain occasions be characterized as "emotional harm." Should the weight of the state be brought to bear if one spouse indelicately comments on the personal hygiene of the other spouse? HB 1204 says "yes." It provides that one party may be excluded from the premises "upon a showing that physical or emotional harm would otherwise result." Excluded mind you, without an opportunity to be heard. HB 1204 amplifies a problem already present in our statutes. The Domestic Abuse Law, 14-4-101 et seq. C.R.S. has similar language as does 14-10-108 which governs the issuance of temporary restraining orders in divorces. But at least under the divorce statute courts will generally allow the prospective ejectee to state his case when the only grounds alleged for being kicked out of the residence are emotional harm. The Domestic Abuse law is more problematic and ambivalent. It does not mention "emotional harm" in its definition of "domestic abuse". But, it authorizes "excluding a party from the family home upon a showing that physical or emotional harm would otherwise result...". The net effect is to tantalize parties into availing themselves of the restraining orders when there has been no history or prospect of physical violence. Many do so to obtain advantage in either a divorce or custody fight. What needs to be done in this area is to clearly distinguish between physical violence/danger and emotional harm. Ex parte (only one side present before the court) orders are entirely appropriate when physical danger is the issue. They are entirely inappropriate when the only harm at issue is
emotional in nature. In the later case there should be a full, noticed, hearing before any orders issue. HB 1204 takes us in the opposite direction. Procedural Changes in HB 1204 Add to the Clutter: While HB 1204 adds a statute (prospectively a new Article 14 in Title 13, "Courts and Court Procedure") it does nothing to consolidate the six civil statutes, one court rule, and one criminal statute, all dealing with personal restraining orders. Such clutter in and of itself is not a bad thing but in the area of restraining orders the clutter on the books is matched with a clutter in our courts and a proliferation of restraining orders in divorce cases. Conclusion: Some consolidation, along with a clarification of important substantive concepts such as physical versus emotional harm, is long overdue. Unfortunately HB 1204 compounds rather than consolidates. For more information: Ed Lederman, is a Denver divorce attorney and Senior Fellow at the Independence Institute. His upcoming Issue Paper A Tangled Web: Restraining Orders, Domestic Violence and Hard Wired Therapy deals wit h issues discussed in this release. Draft copies are available to Legislators upon request. Prepared by, Edward Lederman, Senior Fellow, Independence Institute