One of the questions we often get from our clients who are going through a sex offense case is when can I have contact with my children again? If you are charged with a sex offense, a condition of your bond is that you do not have any contact with children under the age of 18. This includes your own children if they are under the age of 18. This includes extended nieces and nephews who are under the age of 18. There is no exception to the condition of this bond. Now, this has a great impact on your criminal case if you attempt to have contact with your children before there is a resolution to your case. Even when your case is over, there are still a number of hoops you have to jump through in order to have any kind of contact with your children again.
The Colorado Sex Offender Management Board has a number of steps that you have to take in order to have contact with your kids. This includes the Child Contact Assessment and a number of other tests and evaluations.
Child Contact Assessment
What is the Child Contact Assessment? In Colorado, if an accused or convicted sex offender wants to gain access to their own children than the Sex Offender Management Board (SOMB) uses the Child Contact Assesment (CCA) to assess whether contact with their children will be “allowed.” The CCA is a risk assessor to determine if you are a risk to your own children. There are a number of exclusions that would prevent you from even being assessed. There are ways to take a CCA before a plea is reached, however, this will surely impact your case as it does require a certain level of admission to get a positive result.
Attorneys and the therapeutic community will recommend you suspend your parental rights until a plea is reached, but for two different reasons. Attorneys would want you to wait to protect your rights. They wouldn’t want you to go in and admit to things that can be used against in the event that your case goes to trial. The therapeutic community believes that the CCA is not reliable until the conviction enters. The CCA determines the level and type of contact, if any, with the offenders, own children.
The CCA is similar to the protocols used in the post-conviction sex-offense-specific evaluations but also involves more thorough and additional assessment instruments. These assessments explore sexual history, personality style, empathy and capacity for attachment in a much deeper light. The SOMB standards that apply to the CCA can be found here.
The cost of a CCA can be quite high. It can range anywhere from $800-$1800 depending on the assessment. Just because you pay this money does not mean that you will be approved to have contact with your own minor children.
The CA uses extensive psychological testing and personality assessments. This is done through many tests and interviews in a lengthy process. In addition to this, there are sexual polygraphs that have to be taken, other family members will be interviewed and the children themselves will be questioned.
What makes me ineligible to take the CCA?
If you fall under any of these categories then you will not even be allowed to take the Child Contact Assessment. The exclusion criteria are:
- The offender does not meet any of exclusionary criteria in (SOMB Standard) 5.725 (i.e., diagnosis of Pedophilia in DSM-V).
- The offender has a score on the MCMI (Milon Clinical Multiaxial Inventory) of >85 for Antisocial Personality Disorder, Narcissistic, Paranoid, on the DSM-V.
- The offender has been identified as having a mental abnormality on the Psychopathy Checklist, and a diagnosis of sexual sadism, or has ever committed an offense against their own child/children.
- A finding of a Sexually Violent Predator by a Colorado Court, parole board, or equivalency.
What makes me eligible to take the CCA?
- The offender does not have two or more pre-screen factors (see above).
- The offender wants contact with their own minor children (any child under the age of 18).
What are the Criteria Used by the CCA?
The Community Safety Team will use the following criteria before they allow the offender to have access to their own child/children:
- The offender accepts responsibility for the offense related behavior and any significant differences between the offender’s statements, the victim’s statements, and corroborating information about the abuse have been resolved;
- The offender has yielded non-deceptive results in all required areas of the sexual history disclosure polygraph exam(s);
- The offender has yielded non-deceptive results with no new disclosures on the most recent maintenance polygraph. The content of the maintenance polygraph shall have addressed behavior that puts victims/minor children at risk;
- The offender consistently demonstrates the use of cognitive and behavioral interventions to interrupt deviant fantasies and behaviors as evidenced by the offender’s Plethsmograph or Visual Reaction Time results;
- The offender is not exhibiting any significant risk-related behaviors;
- The offender has disclosed information related to risk and other relevant factors as prescribed by the Community Safety Team. The Community Safety Team will make a determination of who should receive this information;
- The offender consistently demonstrates and has documented an understanding of the factors that led to their offending and accepts the possibility of re-offending. The offender has developed a written plan for preventing re-offending to the satisfaction of the Community Safety Team.
- The offender consistently demonstrates an understanding of the impact of the abuse on the victim(s) and the victim’s family, the offender’s family and the community, as evidenced by behavioral accountability and self-regulation;
- The offender consistently demonstrates an understanding of and is willing to respect the minor child’s verbal, non -verbal and physical boundaries and need for privacy;
- The offender consistently demonstrates an understanding of how to safely participate in having contact with the minor child(ren);
- The offender is willing to accept limits or prohibitions on contact as established by the Community Safety Team with input from the minor child(ren), minor child(ren)’s other parent or guardian, or minor child’s therapist and will out the minor child(ren)’s needs first;
- The offender demonstrates they are willing to plan for contact, to develop and utilize an approved safety plan for all contact, to accept supervision during contacts, and to terminate contact when directed by the Community Safety Team, the Approved Supervisor, or the minor child(ren). The safety plan shall be approved in advance and in writing by the Community Safety Team and signed by the offender;
- The offender consistently demonstrates compliance with supervision conditions, accepts the interventions of the Community Safety Team, and does not demonstrate ongoing hostility toward the criminal justice system;
- The offender consistently demonstrates satisfactory progress in treatment, including consistent compliance with treatment conditions;
- The offender has satisfactorily participated in clarification in order to re-establish a parental relationship when the contact involves a non-victim own minor child (see SOMB Standard 5.750- 5.752).
Case Law Preserving Parental Rights
Although there are a lot of hoops to jump through, there is new case law that attempts to preserve a parent’s right to have a relationship with their children. This trend has emerged after an audit found that there is a significant impact on children who do not have a relationship with both of their parents. Under United States v. Burnes, 775 F. 3d 1211, 1233 (10th 2014), a parent has a fundamental liberty interest in maintaining a familial relationship with a child. Any restriction of this interest must be justified by a compelling state interest and narrowly tailored. The court must make two findings before imposing a restriction:
- The condition must be reasonably related to the nature and circumstances of the offense and the history and characteristics of the defendant, and
- The condition must involve no greater deprivation of liberty than is reasonably necessary. at 1225.
The condition of no contact with the minor children is not related to the circumstances of the offense, history or characteristics of the defendant. The condition of no contact deprives the defendant of his right to have access to his children and it is surely not reasonable under these circumstances.
Furthermore, in United States v. Myers, 426 F.3d 117,123-24 (2d Cir. 2005) the court held that before a special condition limiting contact between Myers and his son could be put into place, the lower Court must first decide:
- What the goal of the condition is;
- If the goal is to protect the defendant’s own child, whether an adequate record can be developed to support it;
- Whatever the goal of the condition, whether the defendant has any constitutionally protected right to a relationship with his child; and
- What terms of the condition are necessary and not a greater deprivation of any identified liberty interests than reasonable to achieve the sentencing goal.
A sex offender may not be deprived of contact with his child, absent an individualized showing that the deprivation is narrowly tailored to meet the legitimate goals of advancing rehabilitation or protecting the child. Id. Although both of these cases are relatively new, it does shine some light on the ability for convicted sex offenders to have contact with their children.
This is, as most court processes are, a lengthy process. M. Colin Bresee is an experienced criminal defense attorney in the State of Colorado. If you need assistance getting access to your children, then contact our office for more information.
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