By: Stephen J. Plog
While we’ve written about this subject before, it’s been a while. From time to time, safety or endangerment issues can arise in a child custody case. These types of issues can range from one parent having a drug or alcohol problem which limits their ability to safely parent, to a parent engaging in emotionally or physical abusive behaviors. In instances in which these types of safety issues present an immediate risk to the children such that there are concerns regarding their safety with one of the parents during their court ordered parenting time, Colorado statute offers an emergency remedy in the form of a Motion to Restrict Parenting Time pursuant to C.R.S. 14-10-129(4).
Pursuant to C.R.S. 14-10-129(4), a motion to restrict parenting time can be filed if the children are in “imminent” physical or emotional danger. “Imminent” means immediate and the court will be looking for acute and current concerns tied into the safety of the children. Once a motion to restrict parenting time is filed, the parenting time for the accused parent ceases, unless supervised parenting time with a licensed mental health professional can be arranged. In most cases, once the motion is filed, the court will do an initial review and will either enter an order upholding the statutory restrictions and requiring the setting of a hearing, or will deny the motion, usually based on a lack of information or allegations amounting to “imminent danger.” If the motion is denied the process stops. If the motion is granted, statute requires that a hearing be conducted within 14 days. At that hearing, the party filing the motion will be expected to provide evidence supporting the raised allegations.
In situations of imminent danger, it’s important to file your motion to restrict prior to the accused parent’s next scheduled visitation with the children, so as to ensure their time stops and the kids are protected. It should be noted that while statute indicates parenting time stops upon filing, problems can arise if the accused parent calls the police to seek assistance in getting the kids. Not all law enforcement officers know the dictates of C.R.S. 14-10-129(4). Some will indicate they need to see a court order, which you or may not have at that point in time. If the court does generate an order, it’s important to have a copy of both your motion and that order with you. Some officers may just say it’s a “civil matter” and won’t get involved. It’s not often that police are called, but I’ve seen it happen enough time over the years to at least mention it.
In some cases, the court will require the moving party to contact the division clerk to set the hearing. In others, the court will just set a date and send out notice. Each courtroom and county is different and there’s no uniformity in procedure. Thus, you should be prepared to be proactive in interacting with the court. If you fail to ensure that a hearing is conducted within the 14 days, the restrictions automatically stop.
For hearing, the filing party will need to be prepared to prove to the court that restriction is necessary. Proving the safety issues takes more than just making good allegations. Just going into court and trying to say, “my child told me …. about the other parent,” is not going to be good enough and would likely garner a hearsay objection. Proof needs to be tangible. Absent blatant text messages or emails from the other party, there needs to be some sort of evidence from an outside source, such as a therapist, a teacher, a doctor, law enforcement, or someone who can come to court and testify. I will often advice clients that this proof should be available prior to even filing. Witnesses can be subpoenaed to court if need be. In some cases, witnesses may not be needed, perhaps in a situation where the other parent has been charged with child abuse, or gets a DUI with the kids in the car. In those case, court documents from the criminal case might be sufficient to show that a danger exists. Each case is different and your child custody attorney will know what is needed to prove your case to the court.
If the filing party prevails at the hearing, the court will generally issue an order for supervised parenting time, which also includes a plan for either monitoring the problem, with everyone coming back later for a review, or perhaps specific hurdles or milestones the accused much reach for the restrictions to be lifted. Oftentimes, the filing of a motion to restrict parenting time also leads to a more lasting modification of parenting time down the road. In some cases, a child custody expert, such as a child and family investigator may be appointed.
Before filing your motion to restrict parenting time, you should be aware that statute also provides for a penalty for those who proceed without merit or proof. Specifically, Section 129(4) authorizes the court to award the accused attorney fees if the motion to restrict was without merit. Both the burden of proof and consequences for filing a spurious motion are significant. As such, it’s very important to make sure you have strong allegations and will be able to prove them at trial. It’s advisable to at least consult with a child custody attorney prior to going down the restriction road.
In my next article, I will focus on how the accused should handle responding to or dealing with a motion to restrict. Though many motions are valid and circumstances necessitate restriction, there are also many motions filed with weak, unprovable, or even false allegations. Regardless of the strength of the motion, the accused is required to take action and also prepare for hearing. As nothing matters more than the safety of children, courts take motions to restriction parenting time seriously. So do I.