What is a Motion to Restrict Parenting Time?
A Motion to Restrict Parenting Time is essentially the proper motion one parent or the other might file when there is an emergency situation which warrants the court stepping in for the protection of a child. Motions to restrict stem from C.R.S. 14-10-129(4) and can be filed not only in instances when parenting time (visitation) order already exist, but can also be filed prior to the entry of concrete orders as a “Motion to Restrict Parental Contact.” The latter might be filed at the beginning of a Colorado child custody case, or a divorce.
A motion to restrict is filed with the court in which the underlying case rests and is served on the other parent via regular mail. Pursuant to C.R.S. 14-10-129(4), once the motion is filed, the other parent’s visitation is to immediately stop. The cessation of time is to be automatic and does not necessarily require that the court enter an order or an initial ruling on the restriction. Statute then indicates that there must be a hearing regarding the restriction within 14 days of the motion being filed. Under doctrines of Constitutional Law, the right to parent one’s child is considered a fundamental right and people must be afforded an opportunity to be heard quickly when their parental rights are impeded.
Though the issuance of a court order is not required for the restriction to be in effect, given that most Colorado child custody attorneys file motions electronically, judges are able to rapidly receive and initially weigh in on the motions to restriction. Generally, so long as the court sees a prima facia basis for restriction to be in place it will issue an order granting the restriction and requiring that a hearing be set within that 14 days. In some jurisdictions, the court may require actual, personal service of the motion and order upon the restricted person. In most cases, regular postage is fine.
In terms of meeting both the judge’s initial review of the motion and the burden of proof at hearing, the legal standard for a restriction to occur is that the child is in “imminent” danger of either physical or emotional harm. Imminent equates to “immediate” and courts are looking at these types of motions from the standpoint of the child suffering harm if action is not taken. Abuse of or danger to a child come in many forms, including physical abuse, emotional abuse, or a parent with serious substance abuse or mental health issues putting the child in immediate danger. With the motion to restrict, the moving party will ultimately have to demonstrate to the court that the imminent danger is there and more acute than something lingering tied into bad parenting.
Pursuant to C.R.S. 14-10-129(5), if the court determines that there was no merit or basis for the motion to restrict being filed, it can assess attorney fees and costs against the filing party. With the heightened scrutiny from the court, it is often times advisable to have some sort of third party proof, whether from teachers, counselors, law enforcement, or other witnesses who can provide testimony as to the safety concern for which the restriction is sought.
Motions to restrict can be very nuanced for both parties and not all motions to restrict are validly filed. Arguably, when an unmeritorious motion to restrict is filed, the child and other parent are also harmed by their relationship being impacted, even if for just a short time. At Plog & Stein, we represent parents on both sides of an emergency custody case such as this and know what it takes to effectively litigate these matters.