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Failure to Exercise Court Ordered Parenting Time (Part 1)

By: Stephen J. Plog

Over decades of practicing family law in Colorado, I have seen most imaginable case scenarios and have been asked more questions that I can remember.  Every once in a while I am presented with something that does not come along every day.  One such question is, “what can I do when my ex won’t exercise their parenting time?”   While family law attorneys hear a multitude of stories regarding one parent or the other denying parenting time (visitation), it’s not too common for someone to ask about their legal options if the other parent is not exercising their parenting time.   That said, it does happen.

In these instances, the legal options for relief are not always clear-cut and some further analysis will be needed to determine a sound path.  Relief can be found in a couple of different statutory sections, whether C.R.S. 14-10-129, regarding modifications of parenting time, or C.R.S. 14-10-129.5 concerning parenting time disputes.   Contempt of court pursuant to C.R.C.P. Rule 107 or modification of child support pursuant to C.R.S. 14-10-115 might also be options.  My point is that there are various remedies for dealing with someone foregoing their parenting time.  In each case, the key is which makes most sense, given the specific circumstances.

When visitation orders are entered, whether via agreement or by the court at the conclusion of litigation, it is the court’s expectation that the parents will exercise the parenting time they have just fought for, or agreed to.   This expectation is logical.   However, people sometimes forego parenting time for various reasons.   This can include schedule changes, relocation, relationship issues with the children, personal problems with that parent, and more.  When a client raises the concern of the other parenting not taking their parenting time the most common reason for coming to us is to seek a modification.  In these situations, the first two questions I ask are, “why?” and “how long has this been going on?”  I am also certainly going to inquire as to the age of the child.   If the other parent, without valid justification and for a decent length of time, has failed to exercise their parenting time, modification of the parenting time orders seems the approach most likely to be well received by the court.

It should be noted that statute does not set forth specifics tied into this situation, other than related to changes in primary residential custody.  Likewise, there is no magical time frame for how long is long enough before seeking to modify the parenting time orders.   As a general rule of thumb, and so that a motion will be well received by the court, I would generally advise at least 6 months to a year. At that point, it should be clear to most courts that the parent has no intent on taking the time.  However, I have seen cases in which courts are full of second chances and in which they may rationalize that regardless of the foregoing of parenting time in the past, the noncompliant parent is professing that they will now take the time. Given this potential, the reason why that parent has neglected to take their time does matter.   Just-because, substance abuse or mental health issues, or relocation are going to be seen as more valid reasons for modifying parenting time than things such as a work schedule change.  In those instances, the end result could be the court ordering the same amount of parenting time, just on different days.  Before proceeding on a motion to modify parenting time tied into a failure-to-exercise argument, it is best to consult with a child custody attorney, to thoroughly assess your situation and options.

When a parent decides to regularly skip their parenting time, sometimes the other parent is looking for something more than a modification.  Perhaps they are incurring more child care costs due to the other parent skipping their time.   Sometimes they are impacted in terms of the day to day functioning of their own lives and are just seeking to curtail the other parent’s “violation” violation of the court orders. C.R.S. 14-10-129.5 is a statutory section concerning “parenting time disputes.”  It the statute generally utilized by attorneys related to denials of parenting time and enforcing parenting time orders.  The statute is nondescript as to what a violation of parenting time orders is and technically not exercising one’s parenting time is arguably a “violation.”  Looking at 14-10-129.5 in this context, I have to ask the client what their objective is.   If the other parent is not taking their time and they believe the child is happy with the situation and doing well, I have to ask whether they really want to rock the boat.  Sometimes it’s better to just left sleeping dogs lie.  However, if they are not concerned about rocking the proverbial boat and have concerns related to finances or logistics, 14-10-129.5 gives the court great latitude to deal with parenting time transgressions. The court can modify orders. The court can also employ contempt like remedies, including remedial orders.   Thus, the court could, conceivably, enter an order indicating that if a parent foregoes parenting time and the other parent incurs a cost, that parent will be responsible for such.  The court could require the other parent to post a bond. Pursuant to this statutory section, the court can also award attorney fees and costs, if it finds there was a violation.   Thus, C.R.S.  14-10-129.5 may provide alternative remedies to just modification of parenting time. Keep in mind that many judges will scratch their heads and wonder why someone is using this section for these purposes and, again, this would be highly unusual avenue to pursue.

In Part 2 of this article, I will focus on other ways to deal with one parenting foregoing their court-ordered visitation.  For now, remember it’s always best to contact an experienced family law attorney in Denver prior to proceeding with court action.

Stephen Plog

 

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