It’s been a few years since I have addressed the issue of child endangerment and custody cases. With some minimal changes to statute, and a rash of cases we have seen thus far in 2015, it seems like an appropriate time to revisit the topic. Most cases involving Colorado child custody proceed in normal fashion, with issues related to both visitation (parenting time) and legal custody (decision making) being resolved either through written agreement or ultimately at a hearing in front of a judge. However, from time to time, cases arise in which there are instances of abuse, whether physical or emotional, or neglect, which warrant immediate action on the part of the court. Colorado Revised Statutes section C.R.S. 14-10-129(4) sets forth standards and procedures for parties to seek immediate relief from the court in instances in which there is “imminent” danger to a child. To Colorado custody attorneys dealing with child emergencies, the common term for a motion filed under C.R.S. 14-10-129(4) is a “motion to restrict,” the filing of which comes with its own set of procedures and pitfalls. It is important for parties and legal practitioners to understand how a motion to restrict works and the standards of proof a court will look for for purposes of either sustaining such a motion or defending against one.
As an experienced Denver family law attorney, the first step I take when assessing a motion to restrict is to understand what the specific allegation of danger is. As statute requires a finding of imminent danger, courts are looking for more than just a mean parent, a parent who yells, or lesser, lingering types of mistreatment or neglect. For a restriction of parenting time to stand, courts are looking for acute and imminent danger, such as extreme verbal abuse or real and provable physical abuse.
Because statute speaks of the physical or emotional abuse placing the child in “imminent” danger, courts are looking for a present threat. Thus, timing matters. Raising allegations from years, months, or weeks ago as the basis for a restriction might not cut it with the judge. As such, when real danger exists to a child, it is important to take action in a meaningful manner as relates to timing. The longer one waits to take action or raise an issue, the weaker the argument that the danger is imminent. Issues too far in the past may be building blocks for seek changes to visitation in the normal course of a modification, but will likely not be enough to meet the burden of proof when seeking restriction.
Another significant aspect of a motion to restrict in terms of meeting the burden of proof relates to provability. Sadly, the judicial system is filled with false allegations of abuse or neglect. As such, courts have become extra cautious to make sure that there is substance behind any allegation. With that in mind, I will often indicate that without outside proof, such as a teacher, mental health professional, law enforcement official, or some neutral professional ready to testify, it can be extremely difficult to meet that burden of proof. As parenting time ties into one’s fundamental right to raising their child, court’s are not going to restrict visitation just on he-said-she-said allegations.
Unfortunately, abuse or neglect, or even allegations of substance abuse, often come to a parent from the children. The problem in these instances becomes the fact that statements of a child as to these types of things are generally going to be inadmissible in court as hearsay. In some instances a child will report concerns to a school counselor or doctor, who, as a mandatory reporter, will be compelled to report the matter to either law enforcement or social services. In some instance, this can lead to professional, forensic interviews with a child. When neutral, third party professionals who deal with children are ready to come forward, courts are much more inclined to act. Not every case of abuse or neglect comes with physical signs. A seasoned attorney can offer suggestions or insights as to how to prove the abuse is going on in a manner that courts will recognize. In some cases where abuse or neglect is present, parties might take child to a mental health professional, who will then either report the abuse or may be willing to draft a written report. Problems can arise in situations in which the parties share joint custody regarding making major decisions for a child in that though the parent trying to protect the child seeks counseling, the abusive parent may object, using his or her veto power which comes with joint decision making. Sometimes tough decisions have to be made when balance the duty to protect the child with the strictures of court orders regarding decision making. There is a movie line applicable to these situations, “it’s not what you know, it’s what you can prove.”
Motions to restrict can be filed prior the entry of parenting time orders in a case. C.R.S. 14-10-129(4) authorizes not only a restriction of “parenting time,” but all “parental contact.” As such, restriction can be sought right out of the gate when filing a new custody or divorce case. With a brand new case this is generally the way to go, as opposed to the classic seeking of a restraining order, which some people believe is the way to go when it comes to setting the stage for a custody or divorce battle. Restraining orders ultimately come with a hearing to determine whether the order will be made permanent. Restraining orders are not modifiable for at least four years. Because of this fact, courts are hesitant to grant them as relates to children. In some of the more intellectual courts in the Denver metropolitan area, some judges will convert a protection order case into a restriction case.
C.R.S. 14-10-129(4) indicates that once a motion to restrict is filed, normal parenting time cease until such time as there is a hearing. Thus, if your child is in “imminent danger,” the mere filing of the motion creates instant protection. Statute does indicate that any parenting time that might occur between the time of filing and the time of hearing must be supervised by licensed mental health professional. Realistically, it is rare for the accused to seek out such a professional prior to hearing, as it take time to get appointments. Furthermore, the accused is often in a mad rush to prepare for hearing. When a motion to restrict parenting time is filed, many courts will enter an order restricting the time until a hearing. This can become important in that people who are accused will sometime turn to law enforcement official to assist with getting the child. Without a court order indicating that parenting time is to stop, the party seeking protection for a child has nothing with teeth that police officers will recognize should the other party try to use them to get their visitation. Police officers are not attorneys. As such, their knowledge of what statute says may be limited and their willingness to assist can hinge on whether an order has been issued which restricts visitation.
Once a motion to restrict is filed, statute indicates that a hearing on the motion must be held within two weeks of the filing. Because of this requirement, both sides can find themselves scrambling to gather evidence or line up witnesses for the hearing, If the acc
used parent finds that more time is needed to prepare for hearing, a court may grant a request for a brief continuance, with the understanding that the restriction will stay in place until such time as the hearing is held. Conversely, a court may be much less inclined to grant a request for a continuance made by the accuser due to the fundamental rights of the accused.
I have seen cases in which the other side files a motion to restrict with poor facts, bad wording, or just not enough substantive allegations, in which the court just denies the motion on its own before any further action is necessary. Therefore, the content and wording of the initial motion is significant. The court’s opinion as to the validity of a motion as relates to the need for restriction can hinge on the judges subjective beliefs.
At hearing, the party bringing the case must be ready to back up the allegations he or she has set forth in the underlying motion. This includes having witnesses ready to testify and any documentary or other evidence gathered and ready to use. One must also be ready to argue his or her position. Additionally, in some courts, the hearing might be set for only half an hour, with the court being willing to only hear brief statements from either party. In these instances, the rules of evidence may be somewhat relaxed. When time is short, some judges may be inclined to set a further, lengthier hearing not too far down the road on the court’s docket.
At hearing, it is imperative for the party raising the allegations to testify to the belief that the child is in imminent danger. Keep in mind that danger is danger. Thus, saying the child is only in danger overnight or that visitation without supervision will be okay in short durations will be fatal to sustaining the restriction. Statements or words put forward to the court at hearing must be chosen carefully.
Finally, both sides to a restriction case should be prepared for the notion that the initial round of motion and hearing is just the precursor to lengthier litigation. The gravitational pull of the system will always be towards what steps can be taken to get the parent deemed a danger better and to get normal visitation back on track. Because of this, restrictions should generally be viewed as being temporary. Of course there are cases in which the accused never gets his or her act together. This more often occurs in situations in which there is a severe substance addiction problem or untreated, severe mental illness.
Protecting children is of the utmost importance to courts and restrictions of parenting time are not taken lightly. Whether a motion succeeds or fails will be contingent on how well the facts are pled and argued. It is always advisable to contact an experienced Colorado custody attorney when dealing with child endangerment issues, including defending against them.