Note: This story contains firsthand accounts of court proceedings for custody and protection orders. Because of recent limitations on access to court records as a result of the coronavirus, Law Week has not been able to obtain documents to independently verify the accounts.
Last November, Mary filed for a protection order against the father of two of her children after she said he took the kids from the family’s former home without her permission. Getting them back took several days and she had to get law enforcement involved. She and the father didn’t have a custody arrangement in place, so Mary didn’t have a legal claim against her children’s father for taking them.
She also began pursuing custody of her children in November. But Mary, whose last name Law Week is withholding for her privacy, has seen her custody case turn into collateral damage of a state court system hamstrung by the COVID-19 pandemic. She said at this point several different magistrates have been assigned to the case, and even Mary’s attorney has said she didn’t have clear information about whether to appear in person for a recent court date.
“Because we’re not married and don’t have any custody agreement in place, he could take the children to Canada if he wanted to,” Mary said. “So that’s why I had to go through the courts.”
A statewide order limiting court operations, first issued March 16 by Chief Justice Nathan Coats, designated some proceedings as emergency matters for courts to continue hearing and beyond that left discretion to individual jurisdictions about how to operate. Skeleton courthouse staff and sometimes lack of clarity from courts on how they are handling certain matters right now have made an already confusing court system even more difficult to navigate for litigants.
Shelly Dill, an attorney with the Justice and Mercy Legal Aid Center who represents Mary, said people may choose not to pursue their cases right now because they just don’t understand how to access the court system. Mary’s situation is an encapsulation of the chaos the coronavirus has created even for proceedings courts have nominally continued hearing.
Dill said for a recent court date in Mary’s case, she didn’t get clear communication about whether she needed to appear in person or could call in. So she went to the courthouse.
“And then I got there … and the judge [said I] could have appeared by phone,” Dill said. “And the craziness about that is just really as lawyers trying to represent clients, we don’t even know if our hearings are being held; if they’re being postponed. We don’t know what to tell our clients.”
An Underrepresentation in Courts
The perception that Colorado’s courts are unnavigable right now is also evident in a particular recent trend that at first glance seems paradoxical to the instincts of attorneys, law enforcement and advocates. For all the difficulty of accurately tracking the true human costs of the coronavirus, experts seem to agree that there is one clear symptom of the current issues: a rise in domestic violence. Stay-at-home orders and job loss have trapped survivors at home with their abusers and at the same time created a web of barriers for individuals seeking help.
Those challenges could explain why filings for civil protection orders have decreased statewide since mid-March. Coats’ order for courts carved out protection order hearings as an emergency matter courts may continue. But according to data obtained by Law Week from the state judicial branch, filings dropped more than 35% during the week of March 16, when Coats issued the first order, over the previous week.
But advocates for survivors of domestic abuse say the filing numbers don’t mean abuse has gone down, and some weren’t surprised by the decrease. With stay-at-home orders in place, survivors may not have an alternative to go to or don’t have a safe opportunity to leave their living situation, so they don’t think now is the right time to pursue protection orders and custody cases. Or they might depend financially on their abusers, especially now with more than 300,000 Coloradans out of work.
“The court system is not the tool of first resort for folks right now,” said Jennifer Eyl, executive director of Project Safeguard, which provides legal resources for domestic abuse survivors.
She said the organization’s advocates who work at the Rose Andom Center for domestic violence survivors have seen an increase in calls. But Project Safeguard also has advocates who work in the Arapahoe, Adams, Broomfield and Denver county courthouses, and Eyl said they have seen a decrease in calls since they have been required to work from home.
“Which makes obvious sense, right?” she said. “[The advocates] are not in the courthouse, so it’s much harder for us to connect with those folks.” She added the people coming to Project Safeguard for help right now tend to be survivors in the most serious and immediate danger.
Mary said her children’s father has physically abused or terrorized her on several occasions, and psychological abuse has also been a part of their relationship. Even though she was able to move out of their former home and is in a safe situation now with support getting food and necessities for her children, Mary said she knows she would feel trapped now if she were in her former living situation.
“I absolutely would feel like I just need to keep my mouth shut and play nice, so to speak,” she said. “I would be living in fear of my life every single day if we were still there.”
Exacerbated domestic abuse from the pressure-cooker situation created by the coronavirus has prosecutors concerned as well. Michael Dougherty, the DA in the 20th District, said it touches on another problem prosecutors and courts have had to address during the public health crisis: jail populations. County jails have been concerned about the spread of the coronavirus among inmates and have been making decisions along with prosecutors about using pretrial and early release to reduce jail populations.
But Dougherty said courts must be cautious about releasing people who commit domestic violence on personal recognizance bonds: It’s not unusual for someone his office is prosecuting to harm their same victim again — sometimes fatally — even when the court has issued a protection order.
“At this point in time, I recognize that judges — and prosecutors, too — are worried about the jail population being impacted with the coronavirus,” he said. “But I think it would be a mistake to grant personal recognizance bonds for all domestic violence offenders without recognizing the possible consequences for the victims.”
According to data provided by the 18th Judicial District, domestic violence charges this year decreased to 106 between March 26 and April 27 from 115 during the same time period in 2019. George Brauchler, the district’s DA, said he’s personally surprised that domestic violence charges haven’t decreased more than that, given expectations for incident reporting to go down.
But the district has seen a definite decline in child abuse cases, Brauchler said. Abuse is often reported by someone other than the victim, he said, especially child abuse, which, he said, is often noticed by outside parties such as teachers, social workers or neighbors.
“That’s all gone now because of the pandemic,” Brauchler said. “So that part has changed.”
Organizations that provide emergency shelter for domestic violence survivors play a critical role in helping them leave their situations. Tamika Matthews, the community impact manager for Violence Free Colorado, which connects survivors to shelter and other crisis resources, said shelters are now having to balance the public health crisis with making sure they are still accessible. She said some shelters may have to reduce their capacity temporarily for social distancing or have taken other protective measures such as creating isolation rooms or providing masks for staff.
“A lot of shelters have tried to do their part to take care of survivors and also be respectful of social distancing rules,” she said.
Shelters can’t turn someone away based on whether they have a transmittable disease. They may have residents sign agreements that they will follow laws and orders in place intended to prevent the coronavirus’s spread, but Matthews didn’t say whether any shelters have made decisions to temporarily not accept any new residents because of the coronavirus crisis.
Putting Custody Cases on Hold
In addition to having advocates that work in courthouses, Project Safeguard typically holds weekly clinics for divorce and custody matters. When the organization recently asked clients about their willingness to handle their cases remotely, Eyl said they tended to prefer waiting until their cases could go forward in person.
She said the lack of access to childcare while clients need to do consultations about their case by phone has been a key concern for them, because they may not want their children to have to overhear them discussing their cases.
Dill said she has had clients decide not to pursue their cases after agreeing to represent them, and regardless of their personal circumstances, she said it’s important to respect their decision. It’s about giving them autonomy over their choices.
“I always make a really strong point of telling them that they are in charge, that I work for them,” she said. “I’m going to give them my recommendations and my best advice, but that if they ultimately decide not to pursue their case, then obviously I respect their wishes. I want them to feel empowered, because they have frequently felt so disempowered.”
In mid-March, Rachelle had a new custody case pending with her then-former partner over their 19-month-old son. Dill had agreed to represent her. But Rachelle, who asked Law Week not to use her last name, said within a few days, she and her partner mutually decided to reconcile and stop pursuing a custody arrangement.
“Once the COVID stuff started getting a little bit more serious, though, we just decided that we didn’t want our son being transported between two different houses for his safety,” she said. “And in this time of people having to stay home and be quarantined, we wanted to give our family a second chance, and we wanted to be together through this type of thing.”
She said there have been incidents of abuse in their relationship but declined to discuss details.
But as a stay-at-home mother, Rachelle did say she depends on her partner financially, and that has influenced her ability to leave the relationship.
“There are times I thought about it, but it wasn’t really even an option for me, because I couldn’t financially do it at that time,” she said. She said right now she wants to make her relationship with her partner work.
Dill said even outside the disruptions COVID-19 has wreaked on Colorado’s court system, a person may take several steps before ultimately going through with a court matter. She said it’s not uncommon for a person to initiate a case, such as Rachelle’s custody case, and then decide not to go through with it.
“They reach out for help, but then decide they’re only comfortable with a certain type of help. And that’s O.K. I will be here for Rachelle if and when she decides to come back again. … She decided completely on her own not to go forward, and I absolutely respected that.”