As a parent, learning that your child is in danger can be one of the worst feelings in the world. Not knowing what you can do to stop it can be even worse. What are your options if you think your child is at risk when exercising parenting time with their other parent. Will a Colorado Court support your efforts to protect your child?
What is a Motion to Restrict Parenting Time or Parental Contact?
Under Colorado law, Section C.14-10-129(4), a party in a custody case can file “[a] motion to restrict parenting time or parental contact with a parent which alleges that the child is in imminent physical or emotional danger due to the parenting time or contact by the parent…” This motion is designed to put an immediate halt on all unsupervised contact between a parent and a child, and bring the case to court quickly, so a judge can rule on whether to modify child custody, parental responsibilities, or visitation on an ongoing basis.
A Motion to Restrict Parental Contact can be filed before a custody judgment is entered (for example, along with a complaint for divorce in cases involving domestic abuse or control). Even after a judgment has been entered, a Motion to Restrict Parenting Time can still be filed to modify the existing allocation of parental responsibilities. In either form, this is an extreme motion and requests drastic relief, so it should only be used in the most serious circumstances.
Examples of “Imminent Physical or Emotional Danger”
You shouldn’t file a motion to restrict parenting time or parental contact just because the other parent makes choices you don’t like. Instead, these motions are reserved for immediate risks that a child will suffer harm if action is not taken. There is no complete list of examples that will cover every circumstance, and not every case involving some of the issues listed below is severe enough to warrant filing an emergency motion. However, threat of “imminent physical or emotional danger” could look like:
Physical abuse or child abuse
Substance abuse and intoxication while the child is in the parent’s care
Mental illness creating a danger to the child
Introduction of a partner or caregiver who is a threat to the child
Failure to provide necessary medical treatment or medications to the child
Leaving a younger child unattended or under improper supervision
You should thoroughly discuss the circumstances your child is facing (and the evidence you have to prove it) with an experienced family law attorney before filing any motions to see if a Motion to Restrict Parenting Time is the right choice to protect your child. A Colorado family law case, In re Marriage of Wollert, from 2010, said:
"Simply parroting the statutory buzzwords—’the child is in imminent physical or emotional danger’—will not suffice. Rather, a motion to restrict must state with particularity the bases for seeking to restrict parenting time, and if it fails to do so, the court should deny it outright without a hearing.”
That means you and your lawyer will need to fully establish what has happened and the risk posed to your child if it is allowed to continue.
What Happens After an Emergency Motion is Filed?
As soon as a party files a Motion to Restrict Parenting Time or Parental Contact, state law triggers certain procedures designed to balance the need to protect children from harm against parents’ constitutional rights to be involved in the care of their children. As soon as the motion is filed, any parenting time or contact with the child must be supervised by an unrelated third party “deemed suitable by the court” or by a mental health professional. Though the statute doesn’t specifically require a new order for the restriction to take effect, generally, as long as the motion establishes a reason to believe the child (or children) are at risk of imminent harm, the Court will issue an order granting the restriction.
The law says that the Colorado courts must hold a hearing on a motion to restrict parenting time within 14 days (2 weeks) of being filed. This prevents the supervised parenting time arrangement from dragging on and makes sure the parent from whom the children were removed can respond promptly to the claims against them. At that hearing, it will be up to the parent filing the motion to prove that the imminent danger exists, and is more than just concerns over bad parenting.
When Not to File an Emergency Motion to Restrict Parenting Time
Unfortunately, too many parents try to use their children as leverage to get a more favorable outcome in their divorce. This can include filing emergency motions to restrict parenting time out of a desire to “get back” at the other parent, or to try to manipulate the court by framing the issue in their favor. You don’t want to be that person.
If you are unable to describe a particular risk of imminent harm in your motion, the Colorado court has the authority to dismiss your motion without even granting you a hearing. In addition, if the judge believes you filed the motion without valid legal grounds, he or she could order you to pay the other party’s attorney fees and costs, on top of your own.
That doesn’t mean you shouldn’t talk to an attorney if your concerns are serious but not immediate. If your circumstances don’t present an “imminent physical or emotional danger” there may be other options that will get you the relief you need to protect your child.
How to Defend Against a Motion to Restrict Parenting Time or Parental Contact
If you are the “restricted parent” – the one against whom the Motion to Restrict Parenting Time is filed, the clock starts for you to find an attorney and establish a defense before you even know about the motion. It is essential that you contact an experienced family law attorney as soon as you learn about the motion. Even if you haven’t been formally served with the motion and any court order, your attorney can get copies of the documents from the court, so you can start to build your defense.
Remember that it is up to the party filing the motion to prove that there is an imminent risk of harm to the child. Even if some of the other parent’s concerns are true, you may be able to reestablish contact with your child due to a lack of evidence, or the existence of better remedies. Safety and the best interests of the child are at the center of every one of these motions, so it is important for you to be honest with your attorney and realistic about what should be done to make sure they are safe, even while protecting your rights as a parent.At Aviso Law, LLC, our child custody lawyers know when and how to file or defend against a motion to restrict parenting time and protect your child’s best interests. We want to help you make sure your child is safe, and defend your rights as a parent. Contact us today to schedule a consultation.