In May 2023, Colorado became the first state to enact Kayden’s Law, a law designed to protect children from parental abuse by changing the way “parental alienation” and “reunification programs” operate within the family legal system. Kayden’s law was codified as Colorado Revised Statute § 14-10-127.5.
Why was Kayden’s law enacted?
According to the Colorado state legislature, approximately fifteen million children are exposed to domestic violence or child abuse each year. Since 2008, nearly 800 children nationwide have been murdered by a divorcing or separating parent, with more than 100 murders occurring after a court ordered the child into contact with the alleged abusive parent, despite objections from the parent who made the abuse allegations.
A child’s risk of abuse increases when the perpetrator of intimate violence separates from the child’s other parent or caregiver. Additionally, courts regularly discount claims of physical and sexual child abuse during allocation of parental responsibilities cases and are likely to disbelieve the parent making the allegations. Abusive parents frequently claim that the allegations are false and may hire experts who lack expertise in the alleged type of abuse to testify against the abuse allegations on their behalf, often relying upon unproven theories.
The purpose of this statute is to ensure that a child’s safety is the first priority of the court in custody proceedings. By strengthening the ability of the courts to recognize and adjudicate adult and child abuse allegations based on valid, admissible evidence, courts will be able to enter orders that protect and minimize the risk of harm to children involved. Court personnel who receive trauma-informed training on the dynamics, signs, and impacts of abuse and domestic violence will help protect and minimize the risk of harm to children in cases involving abuse allegations.
What is “parental alienation”?
Parental alienation is a term coined to describe when a child refuses to have a relationship with a parent due to manipulation by the other parent. Allegations of parental alienation often arise in allocation of parental responsibilities cases.
Sometimes, a parent who has an allegation or history of abuse or domestic violence will claim that they are being alienated from their child, often hiring experts from reunification programs to testify on their behalf. Courts have a history of weighing parental alienation claims more heavily than allegations of abuse, often resulting in the court ordering reunification therapy programs. Some of these programs have historically taken the child away from their protective parent and placed them with the accused parent, potentially cutting off all contact between the child and their protective parent.
It is important to note that not all parental alienation allegations are malicious attempts to hurt the other party. Parents can become alienated from their children, with or without allegations of abuse, and simply wish to be reintroduced into their children’s lives. Similarly, not all reunification therapies are harmful; in fact, many are scientifically proven to help children maintain strong bonds with both parents after a separation or divorce.
What is the court’s role?
So, what can the court do when parental alienation claims arise during an allocation of parental responsibilities hearing?
First, the court shall consider the admission of expert testimony and evidence only if the expert demonstrates expertise and experience working with victims of domestic violence or child abuse, including child sexual abuse, that is not solely forensic in nature.
The court shall then consider evidence of past sexual or physical abuse committed by the accused party, including:
Any past or current restraining or protection orders
Arrests for sexual violence, domestic violence, or child abuse
Convictions of the crimes above
Other documentation, including letters from a victim advocate or victim service provider, if the victim has consented, or a letter to a landlord to break a lease
Using these factors in addition to other evidence introduced during the proceeding, the court will decide in the best interest of the child whether to order the family to start reunification therapy, despite the alleged or actual history of abuse.
The statute also places limitations on the court and the actions it can take during an allocation of parental responsibilities proceeding. For instance, the court cannot:
Remove a child from a protective party solely to improve a deficient relationship with an accused party
Restrict contact between a child and a protective party solely to improve a deficient relationship with an accused party
Order reunification treatment, unless the treatment is scientifically proven to be effective and safe, holds therapeutic value, and does not cut off the relationship between the protective party and the child
What if my child doesn’t want to see the accused parent?
According to the statute, if the court orders some type of reunification therapy or program and the child is resistant to spending time with the accused party, the court will not immediately force the child to comply. Instead, before the court will order the protective parent to force their child to spend time with the accused parent, their behavior must be evaluated by a mental health professional.
While it might be difficult to get your child to spend time with the other parent, their refusal does not allow you to ignore the court order. You must take the steps outlined by the court to improve the child’s relationship with the accused parent such as getting them into counseling, and potentially engaging in family therapy geared toward healing the relationship between the child and other parent and thereby reunifying their relationship.
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