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Defending Against a Motion to Restrict Parenting Time

By: Sarah T. McCain

It can sometimes come as a surprise when you are served with a Motion to Restrict Parenting Time by your child’s other parent.  However, if they are represented by an attorney, it shouldn’t.  Pursuant to the Colorado Rules of Civil Procedure, attorneys are under a duty to confer prior to filing a motion. This means that the attorney must reach out to you with their client’s concerns and requests prior to filing a motion. It is possible to reach a resolution based on the conversations that take place. When a resolution is not reached, then it should be anticipated that the attorney will move forward with filing the Motion to Restrict. If the attorney fails to confer with you prior to filing the lack of conferral can be raised as an issue at your court hearing.

Upon the receipt of a Motion to Restrict, your parenting time is immediately restricted. This means that while you can have parenting time, statute requires that any parenting time be supervised by third-person deemed suitable by the court or licensed mental health professional.  Once a Motion to Restrict parenting time is filed, the court is required to hold a hearing within fourteen days of the filing.  While statute affords supervised/restricted time between the time the motion is filed and the date of this hearing, it’s often just not logistically feasible for someone to find a supervisor on such a quick basis.  Though not required to do so, some courts will issue an order rapidly after the motion is filed. That order will generally either reiterate statute as to supervised time or may deny the Motion to Restrict altogether.

Though somewhat unorthodox, sometimes it might be beneficial to quickly file a response to the motion, which may give the court something to think about prior to issuing any interim order, and certainly something for it to think about before hearing.   Given that the court does have the ability to deny the Motion to Restrict based on the pleading(s) alone, a quickly filed response may prevent your time from really being restricted at all.  It should be noted that for the court to just deny the motion, you are going to have to have a pretty strong argument and/or proof as to why a restriction of parenting time is unwarranted.

If the court does grant the interim order restricting parenting time then it’s time to switch gears and begin preparing for hearing. The first step is to address what witnesses you will want to appear on your behalf. Subpoenas to compel witness attendance need to be issued no less than 48 days prior to the hearing date and time.  Since subpoena’s need to be served via personal service, you do need to make sure that these are issued and prepared for service as soon as possible. There are circumstances when it can be difficult to have a person served, so doing it well in advance is advised. This goes for private individuals as well as professionals. If a professional requests to appear by phone, you will need to file a motion requesting such. Of course, friends and some witnesses may be willing to come voluntarily to testify.

Additionally, it’s important to thoroughly go through each allegation made against you and to prepare a defense for each of them. It is important to keep in mind that the individual who has filed the motion must meet a burden of proving that your actions caused, or are causing, the minor child(ren) to suffer either physical harm or significant impairment to their emotional development.  If they cannot prove that your actions are connected to the harm allegedly suffered by the minor child(ren) then there is a good chance that the court will deny the motion. For example, it may be important to call the child(s) therapist who can testify against any emotional issues which have been raised.  Make sure that any paperwork provided for your defense is in order and that you have the requisite copies of those documents to present at hearing.

If you are able to convince the court that there are no safety issues and, thus, prevail at hearing, you may be able to ask for make-up parenting time for any time you missed between motion filing and the hearing.  C.R.S. 14-10-129(4) also gives the court the ability to issue an award of attorney fees should the court find that the filing of the Motion to Restrict was vexatious or frivolously filed.  Thus, you should also be prepared to make arguments related to fees, presuming you have an attorney.

If you are served with a Motion to Restrict parenting time, it’s advisable to contact a child custody attorney in Denver to get a better understanding of your rights and options moving forward.

Sarah McCain family lawyer

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