THE REPRESENTATION YOU NEED IN ORDER TO PROTECT YOUR FAMILY
Posted in Family Law on January 9, 2019
A magistrate is similar to an appointed judge but has more limits regarding his or her role in the judicial system. A magistrate only has the power to resolve certain disputes in the state of Colorado. The most common job of a magistrate is to resolve family law cases, such as temporary orders and parental responsibility hearings in divorce cases. Magistrates must follow specific and unique rules regarding their authority in Colorado court cases.
What Is a Magistrate?
A magistrate is someone with the ability to administer the law, either as a lay judge or civil officer. It is the magistrate’s duty to ensure the fair and impartial administration of justice. Most often, a magistrate presides over minor offense courts and preliminary hearings for more serious cases, rather than taking on major cases like an appointed judge. Like a judge, a magistrate will hear evidence and rule whether a person is guilty or not guilty. The magistrate also imposes an appropriate penalty as he or she deems fit. A judge has more power in court than a magistrate.
Colorado Rules of Civil Procedure
Colorado has a set rulebook for magistrates and judges: the Colorado Rules of Civil Procedure. This guide states that judges may not set aside facts of a case unless they are clearly erroneous. Judges and magistrates must also give due regard to the opportunity of the court to gauge witness credibility. It encourages judges to include sufficient explanations on decisions and motions, to help both parties and a reviewing court. It states that the findings of a master will represent the findings of the court. The Rules of Civil Procedure also has specific guidelines for magistrates.
- All parties involved in a case must consent to a magistrate performing the functions for which he or she has consent. Both parties must receive notices of a magistrate’s involvement in writing before the trial, or else receive an oral notice in open court. If this is the case, all parties may either consent or object.
- A magistrate in Colorado has the right to preside over probable cause hearings, pursuant to the rules of the Interstate Compact for Adult Offender Supervision. However, a court magistrate cannot perform any function that requires special consent, unless the oral or written notice of the function complies with the rules.
- Parties involved in a case using a magistrate have the right to appeal the final decision. Failure to file a petition to review the case within the deadline will serve as proof of both parties’ consent to the magistrate’s judgment.
Magistrates in Colorado mostly hear cases involving protection orders, temporary orders in family law cases, child support motions, parenting time or visitation orders, and legal custody hearings. The Colorado Supreme Court issues the court rules that govern magistrates.
How to Petition for Review of Magistrate Order in Colorado
If a person on either side of a case is unsatisfied with the final order a magistrate gives during a family law decision, that person has the right to petition for a review. Petition for Review of Magistrate Order requests a review of the magistrate’s order by the District Court, based on the belief that the magistrate made the judgment in error. The petition is not to request a new hearing or to correct a clerical error, but to review the decision.
A party has 21 days from the entry of a magistrate’s final judgment to file a Petition for Review. The petition must contain complete details of the case, as requested, and specific authorities that support the petition. A District Court Reviewing Judge will review the case separately from the presence of both parties. Once the deadline for petitions passes, the District Court will review the case file without holding a new hearing. Upon deciding on the case, the District Court will issue written copies of the final ruling to both parties.
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Posted in Family Law on December 22, 2018
Several states now allow civil unions for both same-sex and opposite-sex couples, including Colorado. Essentially, a civil union is a marriage in every way but name. Almost every law that applies to marriage also applies to civil unions. Domestic partnerships, however vary from civil unions greatly. It can be difficult to determine the differences in rights and characteristics between marriage, civil unions, and domestic partnerships. For help determining which of these is the best for you and your partner, talk with a family law attorney in Colorado; state laws make a difference when deciding what will be the best option.
Things to Know About Civil Unions:
Civil union laws are relatively new in the U.S. The courts treat these unions the same as marriages.
- The law regards civil union partners as immediate family members on legally binding documents.
- Civil union partners receive spousal employer benefits the same way that traditional spouses do, including healthcare, compensation, survivor benefits, unemployment coverage, and protection under the Family Medical Leave Act (FMLA).
- In a court of law, civil union partners benefit from the same protection as married spouses have not to testify against one another, or reveal conversations between one another deemed confidential.
- A civil union partner is a spouse for all purposes of probate proceedings, i.e. wills, inheritances, and family trusts.
- Civil union partners can enter into pre-nuptial and post-nuptial agreements the same as couples in or entering into traditional marriage.
- Civil union partners have the same right to presumption of paternity of a child as in a traditional marriage, even if there is no biological relationship.
- A civil union partner is a spouse for the purposes of fostering or adopting. Civil union partners can adopt jointly, just as a married couple can.
- A civil union partner can adopt the existing child of their partner through identical stepparent procedures to those used for traditionally married couples.
Colorado Civil Union Rights
Because the federal government does not recognize civil unions – nor do many states – civil union partners cannot receive federal benefits. These include federal income tax filing status, survivor benefits, federal retirement pensions, and spousal social security.
Part of the reason why the federal government doesn’t recognize civil unions is because of Defense of Marriage Act (DOMA). The Supreme Court overturned sections of DOMA that denied federal benefits to traditionally married same-sex couples who married in states where it is legal. However, this only applies to same-sex marriages, not same-sex or opposite-sex civil unions. Therefore, civil union partners receive no benefits under federal law, only on state-by-state basis. Many civil union couples are hopeful that this Supreme Court ruling will eventually change.
Civil Unions vs. Domestic Partnerships
Domestic partnerships are not synonymous with marriage in the same way as civil unions. While domestic partners have limited financial rights, including the right to receive a pension, receive a partner’s health insurance coverage, and file joint tax returns, that is essentially where the rights of a domestic partnership end. Domestic partnerships are not typically ceremonial, and need only to register at the local level in some places.
Though the differences between civil unions and domestic partnerships vary from state-to-state, civil unions provide more rights overall. This includes more state-based rights, more non-federal benefits similar to marriage, probate rights, shared debt responsibility, and shared rights to property, among other things.
Nonetheless, domestic partnerships provide some important rights. For instance, a domestic partner has the right to pursue damages after the wrongful death of his or her partner. Domestic partners also have the same right to privileged, private communications as married couples and couples in a civil union, meaning that they do not have to testify against one another.
When a person with a biological child marries another person, the new spouse becomes the child’s stepparent. There are many situations in which a stepparent may wish to raise the child permanently with the child’s biological parent, and adoption is the best way to ensure the child has the legal protection afforded to a biological child. An adoption can also help bring a family closer.
In Colorado, a stepparent may adopt a spouse’s biological child under certain conditions. First, the stepparent must not have any prior felony convictions that involve child abuse, violent crime, or crimes of a sexual nature.
Under Colorado law, a child is eligible for adoption when the other biological parent is deceased, or the court has officially ended the parent-child legal relationship between the child and the other biological parent. If the other parent is still alive, he or she must voluntarily relinquish parental rights or provide written permission for the adoption to the other biological parent.
Benefits of Stepparent Adoption
Stepparent adoption can help a mixed family feel more “whole” in several ways. The adopted child may take the new adoptive parent’s last name and feel like more of a family. Depending on the age of the adopted child, a stepparent adoption can be a great way to overcome the difficulties of a divorce or the death of a parent.
The adopted child will have all of the rights that a biological child would, including inheritance rights and the right to pursue a wrongful death claim if the adoptive parent dies due to the negligence of another party.
The Adoption Process
Once a biological parent obtains the consent of the other biological parent for the adoption to move forward, the adoptive parent will need to undergo a federal and state criminal background check. The adoptive parent must also obtain and complete several forms, including:
- Petition for Adoption
- Verified Statement of Fees Charged
- Consent to Adoption – Custodial Parent
- Consent to Adoption – Child Over Twelve Years of Age
- Notice of Hearing
- Petition to Terminate the Parent-Child Legal Relationship
- Consent to Adoption – Non-Custodial Parent
- Waiver and Acceptance of Service
An experienced family law attorney can help an adoption applicant fill out the necessary paperwork and track down any other documentation that may need to accompany the petition.
After completing and submitting this packet of paperwork, the court will likely send an investigator to conduct a home check. This person’s job is to determine whether the adoption would be in the best interest of the child. The investigator will likely ask the child a few questions about his or her home life, school, and his or her relationship with the parents. The investigator will also interview the parents, relatives, step-siblings, and other parties who may be able to provide insight into the family’s dynamics.
The Adoption Hearing and Beyond
Once the investigator provides the court with his or her findings, the adoption process will proceed to a hearing. During this hearing, the adoption applicant will provide the judge with his or her reasoning why the judge should end the legal parent-child relationship with the other biological parent and approve the adoption. If the other biological parent does not contest the adoption or has voluntarily relinquished his or her parental rights, the judge will likely approve the adoption petition.
After the judge approves the adoption, he or she will issue a Final Decree formalizing the adoption and recognizing the legal parent-child relationship between the adoptive parent and adopted child. The parents may also arrange for a name change and a reissued birth certificate. Adoption can help safeguard a family’s financial future and protect an adopted child in several ways. If you believe that an adoption would be right for your family, consult an attorney as soon as possible.