Q: I have been on probation for a DV charge since July 2016, classified as battery because I broke my ex's phone.
We are now going through a divorce and custody battle over our 3 children. They were not home at the time I was arrested. Will I lose my kids because of this charge? I have been doing all my classes, paying fines and passed all my UA' s and possibly completing my DV classes early. My kids currently live with me and I have them 5/6 overnights a week, my ex has them 2 overnights. He now wants to stop paying me child support. He also has a DV charge against me from 2005. Main qurstion.... Will I lose my children? Second question.... Will he have to continue with child support?
A:
DV against a spouse charges are not considered in custody determination beyond the following situations:
(1) restraining orders (PO) may require the use of neutral 3rd party locations for child exchanges;
(2) the DV is related to one or all the children (or there is alleged sexual abuse);
(3) mediation and out-of-court negotiations may require an additional step (nothing big--allowance for preserving a PO);
(4) a few other miscellaneous matters that will not impact a custody determination or child support award.
In short, Colorado does not consider fault between parents in divorces or custody determinations. Child support is based on who cares for the child and ability of the parents to pay for the child's expenses--nothing more. A DV charge may impact some procedural steps, but for custody matters the key thing a judge is looking at is the "best interest of the child" (meaning contact with both parents if possible). The judge will ask about the DV charges for both sides and make sure that both parties have complied with the sentence/parole/etc, but will stop after that primary review.
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