In the event of imminent danger or risk to the child of physical or emotional harm by having parenting time or contact, a motion pursuant to C.R.S. § 14-10-129(4) can be filed with the Court to restrict parenting time. The motion must be heard by the Court within 14 days. In the interim, parenting time may only be had on a supervised basis by an unrelated third party deemed suitable by the court or by a licensed mental health professional.
If the parent filing the motion to restrict parenting time does not prevail at the hearing, and the Court finds that the motion 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.
The restriction of parenting time is effective at the time the motion is filed with the court. Before the motion can be filed, there must be an existing case where parenting time has been ordered: either a dissolution of marriage (divorce) proceeding or an allocation of parental responsibilities (custody) proceeding. The motion is filed in the court having jurisdiction over the divorce or custody case.
The unilateral ability of one parent to prevent the other parent from having contact with their children undermines the other parent’s Constitutional fundamental right to parent their children. The State can only interfere with this right in extraordinary circumstances, and then in a limited way. As the ability to prevent parental contact is provided by statute, the State is providing a means for one parent to limit or restrict the other parent from contact with their children: this is state action and subject to Constitutional protections and scrutiny. In many cases a motion to restrict parenting time is quickly reviewed by the court after it is filed and ruled upon — either by entry of an order prohibiting contact, unless supervised, and directing a hearing be held within the 14 day time period or denying the motion if sufficient grounds are not alleged.
If the hearing is not held within the 14 days, the court loses jurisdiction to act on the motion and the restriction ends.
The burden to prove that the child(ren) are in imminent danger or risk of physical or emotional harm is on the parent who filed the motion. If the motion is not proved, and the filing of the motion was without just cause, the court must order the moving party to pay the reasonable and necessary attorney fees and costs of the other party.
It is wise to have evidence from a reputable person to present to the court when filing a motion to restrict the other parent’s contact with the children. It is a drastic procedure and bringing the motion without proof has consequences.
Pursuant to C.R.S. § 14-10-129 (1)(b), “The court shall not restrict a parent’s parenting time rights unless it finds that the parenting time would endanger the child’s physical health or significantly impair the child’s emotional development. In addition to a finding that parenting time would endanger the child’s physical health or significantly impair the child’s emotional development, in any order imposing or continuing a parenting time restriction the court shall enumerate the specific factual findings supporting the restriction.”
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.