In divorce and custody matters, the court will allow both parents parenting time with their children unless it would “endanger the child’s physical health or significantly impair the child’s emotional development.” A similar legal standard applies to restricting parenting time.
If you believe your child is in danger, you can file an emergency motion to get your child out of harm’s way. This guide covers emergency motions to restrict parenting time and the legal proceedings that go along with it so you can better navigate the process.
Table of Contents
- When Colorado Courts Will Restrict Parenting Time
- What Kind of Evidence Do I Need to Give the Court?
- What Happens After I Submit My Motion?
- How Soon Can an Emergency Hearing be Set?
- What to Do Before the Hearing
- What Happens at the Hearing
- A Colorado Example
- We Keep Children Safe from Dangerous Parents
When Colorado Courts Will Restrict Parenting Time
Colorado family courts typically operate under the assumption that children need a meaningful relationship with both parents. Therefore, the court will not restrict parenting time unless it finds a parent is endangering their child’s physical health or emotional development. Colo. Revised Statutes § 14-10-129
If you believe your child’s other parent is placing your child in imminent physical or emotional danger, you can file an emergency motion to restrict parenting time with the court. C.R.S. § 14-10-129
What Kind of Evidence Do I Need to Give the Court?
“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.” In re Marriage of Wollert, 2020 CO 47, ¶ 27, 464 P.3d 703, 710
As you can see from the above-cited case, a judge will not accept broad language accusing your ex of putting your child at risk.
You must outline𑁋under penalty of perjury𑁋precisely why you believe your child is in imminent physical or emotional danger when they’re in the care of their other parent. You should include specific factual allegations of the other parent’s abuse or neglect.
The more tangible evidence you have, the better. Courts will likely require more than just statements from the children, as this is considered hearsay.
Examples of Neglectful and Risky Behavior
- uses illicit drugs in front of the child
- leaves young children unsupervised
- drives under the influences of drugs/alcohol with the children in the vehicle
- does not properly store firearms or other weapons
- child returns home from parenting time with physical injuries
- the other parent is verbally or emotionally abusive to the child
What Happens After I Submit My Motion?
The court will review your allegations. If it does not find them to be credible, the judge will not schedule a hearing. Parenting time will immediately resume if the judge denies your order on its face.
Colorado law uses the term facially insufficient to describe baseless allegations:
“after taking all the allegations in the verified motion as true, there is no set of facts or circumstances that could give rise to the conclusion that the children are in imminent danger of physical or emotional injury.” source: The Practitioner’s Guide to Colorado Domestic Relations Law § 4.5 (2014)
If the court believes your children are in danger, it will schedule a hearing. Parenting time restrictions will remain in place until further orders are set after an evidentiary hearing.
How Soon Can an Emergency Hearing be Set?
Generally, a judge will schedule a hearing within 14 days of granting your motion.
In the meantime, your child’s other parent is not allowed to exercise any visitation during that 14-day period unless supervised by a neutral third party or a licensed mental health professional. source: The Practitioner’s Guide to Colorado Domestic Relations Law § 4.5 (2014)
If the hearing does not occur within 14 days, restrictions to parenting time will end. C.R.S. § 14-10-129(4).
Because a court may not be immediately available to determine the suitability of a supervising third party, the other parent’s visitation may be suspended completely during this 14-day period.
What to Do Before the Hearing
This is your time to gather additional evidence to support your claim that your children are in immediate physical or emotional danger.
This evidence can come in many forms, such as:
- police reports
- therapist evaluations
- eyewitness interviews
- firsthand observations from the parent
If the allegations pertain to sexual abuse, the child’s statements could possibly factor in under the child hearsay statute (C.R.S. 13-25-129.)
What Happens at the Hearing
The court will hear from both parties and decide whether the evidence indicates the children are in harm’s way if they return to their other parent.
If the court finds that your allegations against your child’s other parent are without merit, you may be ordered to pay their attorney fees and costs associated with defending against your motion.
A Colorado Example
A Jefferson County couple divorced in 2020. Per the divorce decree, their young son would live primarily with his mother while his father followed a step-up parenting time schedule, which began with an overnight stay every week. The goal was to reach equal parenting time within nine months.
In February 2021, the mother filed a motion asking a Jefferson County district court to restrict the father’s parenting time. Among other things, she alleged that their son had sustained a deep gash on his forehead during the most recent visit with his father. The injury required eight stitches.
A judge set a hearing for the following week and ordered that the father have only supervised visits with his son until then.
Court Hears the Evidence
At the emergency hearing, the court heard evidence that the son had sustained several head injuries while in his father’s care, each of them “worse than the last,” the mother testified.
The judge found that “father’s pattern of poor supervision endangered [his son]” and that the father had “failed to provide reasonable and adequate explanations for [the boy’s] injuries.” In re Marriage of Thorburn, 2022 COA 80, ¶ 49, 519 P.3d 736, 744
Ultimately, the judge opted to continue the father’s supervised parenting time. Further, the court imposed certain conditions that the father must meet before he could request a modification.
We Keep Children Safe from Dangerous Parents
When your child’s safety is at risk, you need an experienced Colorado family law attorney on your side. Call 303-688-0944 today to begin your free case assessment with one of R&H’s award-winning family law attorneys.