COLORADO CUSTODY: VISITATION, DANGER, AND MOTIONS TO RESTRICT PARENTING TIME

January 14, 2012

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What do you do when your child comes home with a huge bruise on his or her back and an explanation that mom hit me? How will you handle your ex-husband getting a DUI with the kids in the car? What if your ex-wife is arrested for possession of cocaine? How will you handle your child coming home and saying she was inappropriately touched by her new step-dad? These are all situations that I have seen as a divorce lawyer in Denver. There is nothing more frightening to a parent than his or her child being hurt or in danger while in the care of the other parent. The question then becomes how do you deal with it?

No one wants to see a child in danger, period. This includes judges and most attorneys. Fortunately, Colorado statute sets forth procedures for dealing with true child emergencies. Specifically, C.R.S. 14-10-129(4) indicates that a party to a case involving children may file a "motion to restrict parenting time" in the event that such may cause harm to a child. Pursuant to C.R.S. 14-10-129(4), a motion to restrict parenting time may be filed if the child is in imminent physical or emotional danger while in the care of the other party. In such instances, statute sets forth that once such a motion is filed, the other parent's visitation is to immediately stop. Statute also indicates that a hearing regarding the motion to restrict parenting time shall occur within 7 days of the motion being filed. Though this sounds like a great legal mechanism for taking your child out of a dangerous situation, there are pitfalls in regard to taking this type of action, and most judges will take the language of statute quite literally.

The first step your Denver custody lawyer should take when assessing the potential for filing such a motion is to look at whether the danger, whether emotional or physical, is "imminent." For our purposes, "imminent" means immediate, meaning that the danger is current, or immediately forthcoming, with the resumption or continuation of visitation with the offending party. Parents often get hung up on what this means.

Using obvious examples, if a parent learns that the other has just been arrested for using crack cocaine while caring for the kids, or has just gotten a DUI with them in the car, such would be of immediate concern to their safey. If a child comes home with a cigarette burn or a black eye, with the story that mom or dad did it, such would be immediate or "imminent." A suicide attempt by a parent may also pose an imminent danger to a child. These are acute, ascertainable examples of things I have seen. There are other types of danger that are not "imminent." A parent may find out that the other parent snorted some coke three months ago at a party. Though certainly a concern, there is no provable immediate threat. A parent might indicate that the other parent is sleeping all day and not caring for the child. Though this could certainly be a danger, it is not of an immediate nature such that a motion to restrict parenting time would likely be sustained. Motions to restrict entail current, immediate threats of a serious physical or emotional nature. They are not to be based on concerns of long term damage to a child based on less than quality care. There are, of course, potential remedies to deal with those types of situation set forth in statute.

The next issue to assess is whether there is really a "danger" which needs to be addressed. In the family law world, danger truly means danger. Cigarette burns, physical abuse, drug use, alcohol use to the point of not being able to function, sexual abuse of a child, severe mental health episodes, or domestic violence with the children in the home are true dangers. Daddy or mommy yelling at the child are not. Daddy repeatedly telling the child he is a stupid little fu*^#er likely is. Mommy looking at internet pornography while the kids are asleep or with the other parent are not. Mommy sharing internet pornography with the child is. Daddy not doing the homework, thereby leading the child to get bad grades is not. Daddy repeatedly telling the child he cant's go to school because he thinks aliens will attack is. A spanking done appropriately is not. Bruises and welts on the back caused by a belt are. Mommy's new boyfriend having been arrested 5 years ago for domestic violence is not. Daddy shooting his new girlfriend with a crossbow is. My point is that danger can come in all forms. Though each of the scenarios set forth above is certainly not in the best interest of, nor optimal for a child, not all of them constitute a danger, or imminent danger, to the court as anticipated by C.R.S. 14-10-129(4). One must identify a true danger to his or her children prior to filing a motion to restrict parenting time.

Once danger is ascertained, the next step in the analysis is to determine what is provable. There is a line from the 2001 Denzel Washington movie, Training Day, "It's not what you know, it's what you can prove." These are words I have to quote to clients from time to time, and not just related to issues of child danger. Sadly, the Colorado Rules of Evidence are such that statements made by a child are generally going to be taken as hearsay. Thus, merely reporting to the court that, "my daughter says..." without some sort of third party substantiation or verification can be problematic and, standing alone, will likely lead to a motion to restrict parenting time ultimately being denied. One might think the child could just talk to the judge. This is just not how it's done, even generally with teenagers. A child might report to a counselor or teacher that he or she is being abused. That person can put together a letter or report, and can also be called to testify. A child might be taken to the doctor for those welts or bruises. Medical records and photographs can be used to back up the claims of abuse. Medical staff can also be called to testify. In cases of a drug or alcohol arrest, certainly those records can be used, and witnesses can be called as well. In the examples of the teachers, counselors, or doctors, the level of proof becomes greater in that they are mandatorily required, by statute, to report any credible threats of abuse to officicals for investigation. Sadly, not all situations of danger come with third persons to verify the concerns. Each parent, in conjunction with their attorneys, will have to weigh what evidence they may have to support their claims at the hearing which is to occur within 7 days.

At the hearing, the court will listen to the evidence presented and make a determination of whether the child is in imminent physical or emotional danger due to the visitation with the other parent. If such a finding is made, restrictions shall be put into place. A common misconception people have is that the restrictions will last forever or will somehow forever preclude the other parent from resuming his or her visitation. In most instances, absent the most heinous or aggregious situations, such as sexual abuse, the courts will enter restrictions, such as supervised visits, counseling, substance abuse monitoring, etc., with the goal of ultimately getting the visitation back on track. Each judge is going to be different in terms of how long restrictions may last or what levels of rehabilitation they believe must be shown. A motion to restrict is truly designed to correct an immediate problem. This is not to say that long terms changes to visitation or custody cannot also be sought with the filing of a more comprehensive motion to modify.

Unfortunately, the system as a whole can, potentially be jaded, due to the countless people who raise false allegations, with the hope of gaining the upper hand in a custody battle. Sadly, I have seen these instances as well and have also defended numerous clients who have been wrongly accused of dangerous behavior. Most judges have, too. As such, there will certainly be some level of scrutiny aimed at the accusing parent in terms of his or her allegations, motivations, and credibility. Therefore, proceeding with proper levels of proof is important. Furthermore, if the court finds there is no valid basis for the motion to restrict to be filed, it can award attorney fees and costs to the other party pursuant to C.R.S. 14-10-129(5).

Each child is different. Each parent is different. Each court is different. Levels of danger are also different in terms of being immediate or severe enough to bring a motion to restrict parenting time. At the same time, a parent's primary duty is to ensure the safety of his or her children. In a short term, immediate sense, C.R.S. 14-10-129(4) provides a tool to protect children. It may not alleviate all concerns, but it does remove a child from a bad situation and provides an opportunity for the court to hear evidence shortly thereafter.

Finally, I am compelled to point out that though statute very clearly indicates that normal parenting time ceases upon filing of such a motion, most police officers do not know this. I am thoroughly perplexed as to why? If court orders indicate the child is to be with dad on Thursdays and mom files a motion to restrict parenting time on Wednesday, dad's time should not take place. However, absent an order indicating his parenting time stops, even if you have proof that you filed your motion to restrict, most police officers will say, "it's a civil matter..." and hand the child back over to dad, should he seek their assistance. Thus, with the filing of the motion, it is also important to file a proposed order for the court to sign off on, which indicates that the other party's time stops until the hearing is held.

It is my sincere hope that no more children are put into dangerous situations. I know this is just a hope, and not reality. Conversely, I hope that I see no more false allegations designed to gain an advantage in a custody case. I also know this is just not a realtiy. Hopefully, either side of the equation is now armed with some knowledge as to what to do when danger to a child arises within the confines of a custody setting.