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Padilla Law, P.C. is excited to announce their new office location in Durango. Effective May 16, 2019, Padilla Law will be located at 1099 Main Avenue, Suite 321, Durango, Colorado 81301. The firm's mailing address will remain P.O. Box 2835, Durango, Colorado 81302.
Please call the firm for an appointment.
Paul Padilla was co-counsel in a case decided by the United States District Court of New Mexico in 2014. The case involved subterranean trespass and forced pooling in an oil and gas matter. It established subterranean trespass as a case of first impression. Paul successfully litigated the case. The case is published on Westlaw 2014 WL 11512599.
Beth Padilla recently served as Office of the Child's Representative firm faculty for a training at the National Institute for Trial Advocacy (NITA) in Boulder, Colorado.
Padilla Law has exciting updates!
Often times grandparents serve a critical role in their grandchildren’s lives. Unfortunately, when parents go through a divorce, a grandparent’s ability to continue his or her relationship with the grandchildren can suffer. In Colorado, a grandparent may file a motion to intervene and request grandparent visitation in certain types of cases. Specifically, C.R.S. 19-1-117 allows a grandparent or a great-grandparent to ask the Court for reasonable visitation rights if there has been a child custody case (which can include a divorce or custody case between unmarried parents).
If the grandparent decides to seek a Court order for visitation, he will likely need to file a motion to intervene first. If the motion to intervene is granted, the grandparent becomes a party to the child custody proceeding. Then, the grandparent must file specific documents to request Court ordered visitation.
Many grandparents do not want to be a party to his or her child’s divorce case. Sometimes grandparents choose to hire an attorney and try to negotiate grandparent visitation with the parents. If that is successful, the parents can file a notice with the Court indicating they agree to the grandparent visitation.
Child custody proceedings and divorces are hard for the entire family. Ensuring grandparents continue to have contact with their grandchildren can be very important to families.
-- Beth Padilla
Are you caring for a child pursuant to a guardianship? Are you a grandparent who has custody of his grandchildren? Sometimes, families decide that adoption is the best option for children and seek to terminate the parent's parental rights.
In Colorado, an individual may file a motion to terminate a parent’s parental rights under limited circumstances, pursuant to C.R.S. 19-5-203(1)(j). First, it is important to understand that it is against public policy for a parent’s parental rights to be terminated unless some other adult is going to adopt the child. For example, if a mother files a motion to terminate the parental rights of the father, but there is no other adult willing to take the father’s parental rights, the Court is likely to deny the motion.
A parent’s parental rights may be terminated if the parent has failed without good cause to provide financial support to the child or has abandoned the child for a year or more. Filing a petition to terminate a parent’s rights on this basis is not a guarantee that the Court will grant the motion and a hearing is required. The person seeking the termination must serve the parent with all of the paperwork and the parent will have an opportunity to tell the Court why his or her rights should not be terminated.
If a person is successful in terminating a parent’s parental rights, the person may then seek to adopt the child. Private terminations and adoptions are a complicated part of the law and seeking legal representation can be helpful.
--Kayla Mahoney, Legal Intern
Beginning August 9, 2017, it will be legal to use force in order to rescue animals or people from dangerous cars. However, there are a few things to know in order to be immune from criminal or civil liability.
Who is Protected?
CRS 13-21-108.4 protects “at-risk persons” which are at risk adults, at risk adults with an intellectual or developmental disability, at risk elders (people over the age of 70), or at risk juveniles (people with a disability under the age of 18). Dogs and cats are also protected; livestock is explicitly not protected under the new law.
Prior to Breaking a Window
First, you must have a reasonable belief that the at-risk person or animal is in “imminent danger of death or suffering serious bodily harm.” Second, you must make a reasonable effort to find the owner or person driving the car. Third, you have to ensure the car is locked and that the only way to enter is by force. Fourth, you have to contact law enforcement (fire department, animal control, or 9-1-1) prior to breaking a window. Make sure to document and report to law enforcement the color, make, model, license plate, and location of the car.
Breaking a Window
If you need to use force to rescue, do not use any more force than is necessary. For example, if breaking one window will suffice, don’t break all the windows.
After Breaking a Window
You must remain with the person or animal near the vehicle until law enforcement arrives and not interfere with their official duties.
If you have to leave before law enforcement arrives, you must (1) place a note on the windshield of the car and include your name and contact information and (2) inform law enforcement that you must leave, include your name and contact information. It is important to note that this applies even if you are leaving to take the person or animal to seek medical help. If that is the case, you must also leave the name and contact information of the place you are taking the injured on the note left on the driver’s windshield and also provide the information to law enforcement.
Things to Remember about Rending Emergency Services
Although the new law may provide some protection if an animal is in danger, we do not recommend breaking windows. Utilizing the new law should be an absolute last resort and may not protect a person from being charged with a crime.
The Sixth Judicial District Best Practices Court Team sponsored a CLE on March 17, 2017. Beth Padilla is the co-chair of the Best Practices Court Team and organized the presentation. The CLE included presenters from the State of Colorado Department of Human Services, Archuleta County Department of Human Services, Authentic Solutions Counseling, and Honorable Judge William Herringer. The CLE was attended by more than twenty five individuals.
--Paul E. Padilla
On June 20, 2016, the U.S. Supreme Court issued a ruling in Utah v. Strieff that allows the police to use evidence in a criminal case, even when the police collect the evidence unconstitutionally.
The general rule is that if the police violate your constitutional rights when collecting evidence, they are not allowed to use that evidence to prosecute you in a criminal case. Although there are exceptions to this rule, it is a right created by the 4th Amendment of the U.S. Constitution. In short, the police cannot benefit from breaking the rules.
In Utah v. Strieff, the Supreme Court expanded one of the exceptions to the rule, which will allow the police to use evidence against you, even if the evidence is collected illegally.
In this case, the police were watching a house where they thought drugs were being sold. They saw a man walk out of the house and down the street. The police had no evidence that the man had committed any crime. The police stopped the man and demanded his ID. When the man gave the police his ID, they learned that he had an arrest warrant from a completely different crime, so they arrested him. As they arrested him, they discovered methamphetamine in his pocket, which was used against him at trial.
When the police first stopped the man, it was an illegal stop because the police did not have any evidence to believe that the man had committed a crime. Before this case, the drugs found in the man’s pocket could not have been used in his prosecution because the police violated his constitutional rights.
But, this case now allows the police to use the evidence in prosecution, even if the original stop was illegal. The Supreme Court expanded a rule called the “attenuation doctrine” so a court will now consider three factors to decide if the police can use the evidence:
This test is very dangerous for ordinary citizens, because it gives the police an incentive to conduct illegal searches with the possibility of finding very bad evidence.
For example, the police could pull over a car for no reason, with the hope that the driver has an arrest warrant, past due child support, or drugs in the car. Essentially, it will reward the police for making illegal stops, as long as the illegal activity is minor (stopping you on the street or pulling your car over) and does not relate to the reason for the illegal search (they stop you while driving, but find that you have bail violations for other crimes).
The Court's full decision is below:
Guardianship of a Minor Child
-- Beth Padilla
Many families are faced with difficult situations where a parent is not able to care for his or her child. In that situation, it is not uncommon for a grandparent, aunt, uncle, or other relative to step in to care for the child until the parent is able to do so. It is important to ensure the caregiver relative has the appropriate legal documentation in place to care for the child. For example, in an informal arrangement, the caregiver may not be able to enroll the child in school or seek routine medical attention for the child.
Some caregivers will choose to petition the Court for guardianship. In Colorado, we have three types of guardianship: (1) emergency guardianship, (2) temporary guardianship, and (3) guardianship.
The Court may appoint an emergency guardian pursuant to C.R.S. 15-14-204(5) when the normal procedures for appointment of a guardian will “likely result in substantial harm to a minor's health or safety and that no other person appears to have authority to act in the circumstances, the court, on appropriate petition, may appoint an emergency guardian for the minor.” An emergency guardianship cannot last for more than sixty (60) days.
Another option is for the caregiver to file for temporary guardianship. The Court may appoint a temporary guardian pursuant to C.R.S. 15-14-204(4) “upon a showing that an immediate need exists and that the appointment would be in the best interest of the minor.” A temporary guardianship cannot last for more than six (6) months.
The final option would be to seek a full guardianship. A guardianship will last until the child reaches eighteen (18) years of age.
There are many considerations when deciding whether to petition the Court for a guardianship. It is important to remember that every situation is different and this brief explanation of guardianship is only one part of a very complex legal situation.
Beth Padilla was recently selected for membership into The National Advocates: Top 40 Under 40. The National Advocates: Top 40 Under 40 is a professional organization comprised of America's top attorneys 40 years of age and under in the areas of Matrimonial and Family Law, Bankruptcy Law, Social Security Disability Law, Employment Law, Immigration Law, and Wills, Trusts, and Estate Law.
Padilla Law, P.C.
First Draft is a collaborative effort between Beth and Paul Padilla, both equity partners in the firm, and is intended to give you a brief overview of current legal topics and let you know what effects those issues may have in your life.