Emergency Motion to Restrict Parenting Time in Colorado
What do you do if you are concerned that the other parent is physically or emotionally endangering your children? If you have serious concerns about the safety of your children, you can file an Emergency Motion to Restrict Parenting Time pursuant to §14-10-129(4), C.R.S.
How Does the Process Work?If you believe that the actions of the other parent are endangering your children, you can file a Motion to Restrict Parenting Time. The specific form that needs to be filed can be found in the Colorado self-help forms on the Colorado Courts website http://www.courts.state.co.us Once you file the Motion, the Court will usually review the motion within 24 hours. If the Court grants the motion, the other parent's parenting time will automatically be restricted until a hearing is held. Restricted means that his or her parenting time can only occur supervised by an unrelated third party deemed suitable by the Court or by a licensed mental health professional. The Court is required to hold a hearing within fourteen (14) days from the motion is filed. If a hearing is set, the parties usually have a short hearing (1 or 2 hours long) for the Court to determine if it believes that the minor child is endangered by the other parent. After the hearing, the Court will determine whether to grant such motion and restrict the parenting time, or put other, less restrictive limits on a parent's parenting time, or deny the motion in its entirety. In the alternative, the Court can deny the motion on its face, and that ends the process altogether for you. If this occurs, you need to abide by any current parenting time orders.
Standard for CourtSpecifically, the statute states "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 shall be heard and ruled upon by the court not later than fourteen days after the day of the filing of the motion." It is up to the parent bringing the motion to prove to the Court that not only is the child in physical or emotional danger due to parenting time, but that such endangerment is "imminent." Imminent means that whatever action has occurred, has occurred very recently. It is not enough to bring up something that occurred six months ago.
What is considered "physical or emotional danger?"The statute does not provide much guidance as to what is considered endangering the child(ren). Accordingly, the Court has much discretion in determining whether a certain action (or inaction) is serious enough to be considered putting a child in physical or emotional danger. Based on my experience, however, Judges are very reluctant to grant these sort of motions. They are cautious because every parent has a right to parent his or her child, and entering this type of order substantially limits his right. Furthermore, the Judges are cautious to enter such orders because they often see this process abused by one parent to unnecessarily restrict the other parent's time with the children. Make Sure You Have a Solid Case and this is Entirely Necessary Before the Motion is Filed Proceed with caution before filing a Motion to Restrict Parenting Time. If the Court denies your motion on its face, you may lose credibility with the Court. Even if the Court initially grants your motion, but later denies it after a hearing, you still stand a chance to lose credibility with the Court. Part of the statute even states that "If the court finds that the filing of a motion under subsection (4) of this section was substantially frivolous, substantially groundless, or substantially vexatious, the court shall require the moving party to pay the reasonable and necessary attorney fees and costs of the other party." Accordingly, the Court has the discretion to punish the party bringing such motion, and order attorney fees against him or her, if it believes the motion was frivolous, groundless, or vexatious. If you "wrongly" file this type of motion, the entire course of your case and parenting time may shift, with the Court finding you less credible.
What Are My Other Options?If you believe that you have some serious concerns about parenting time, but does not think they rise to the level of "endangerment," you may want to just file a motion to modify parenting time. It may be wise to speak with an attorney before filing either motion; most attorneys have seen a wide spectrum of cases filed under this type of motion and may be able to give you insight as to whether it is a good idea to file such motion.