Civil Lawsuit – Tort Litigation
When another person interferes with your natural or court ordered right to parent your child, one of your remedies is to sue them. The person causing you harm may be the other parent, someone acting on behalf of the other parent — or in concert with them — or a complete stranger. Your right to sue is under the Common Law rather than pursuant to a statute enacted by the legislature.
Common Law is sometimes called judge-made law, but is more accurately described as the court’s interpretation, refinement and enforcement of basic rights and principles that are important and essential to persons in a society: how a court determined those rights to be in a given circumstance in the past is given considerable weight (precedence) in subsequent court cases with the same or similar set of facts so that there is consistency in how the matter is dealt with from one time to another.
A basic human right is to have a family, and to protect that family. All societies are built upon this basic foundation. You have the right to protect yourself, to have children, to raise your children and to protect your children. The right to parent your children has been declared by the US Supreme Court to be a basic “fundamental” right protected under the United States Constitution. When someone interferes with your right to parent your children, one of your remedies is to sue them for the injuries you suffered as a result of that interference. The injuries may be emotional (stress, worry, anguish, etc.), financial or physical, or take some other form.
An action in tort is a lawsuit for personal injury: an injury you suffered personally as the result of what some other person did. The remedy is an award of money against the other person in an amount determined appropriate to compensate for the injury suffered. A civil lawsuit where you are personally seeking justice against the person who injured you. By comparison, a criminal action is where the state is seeking justice on behalf of society as a whole against the transgressor and the remedies sought include penalties in addition to, or other than, money (i.e., jail).
Statutes are sometimes intended by the legislature, or interpreted by courts, to override or replace the rights existing under the common law. The Colorado legislature made clear in the statute providing legal remedies to enforce the court’s parenting time orders (C.R.S. § 14-10-129.5) that the statute does not preclude, or prevent, the parent who was denied parenting time from bringing a separate and independent action in tort. This means that, by enacting the statute, the legislature did not intend to override or replace the right of a parent under the common law to seek justice against the other parent, or other person(s), for interfering with their parental rights.
When your parenting time is denied by the other parent, or your right to parent your child is wrongfully interfered with by another person, you have the right to seek justice. Filing a motion for contempt or filing a motion requesting the family court to enforce your parenting time rights may not fully and adequately remedy the wrong committed against you. For example, a motion for contempt or enforcement of parenting time can only be brought against the other parent who is subject to the court’s initial order: the family court has no jurisdiction or authority over the actions of other persons who may have been involved, conspired with or enabled the other parent to interfere with or undermine your parenting time. Filing a lawsuit in tort may be your only civil remedy for the wrongs committed by other parties. Another reason for bringing an action in tort is that the lawsuit can be heard and decided by a jury rather than a judge or magistrate. A jury of your peers may be a better option and more receptive to you than a judge or magistrate in the family court system.
Martin Law Firm is available to meet with you to explore your options
for enforcing, preserving and defending your parental rights.
The information provided above is general in nature, is not intended as legal advice for your particular situation and should not be relied upon without first consulting with legal counsel. Martin Law Firm provides legal representation in parental rights enforcement matters in the Denver, Colorado, metro area and will tailor its services to your particular needs and unique circumstances.