Rushing to take away the other parent's custody could blow your only opportunity
Your son comes home from his alternating weekend visit with his father, and three days later he tells you his father locked him in a dark closet for several hours and repeatedly slapped him in the face as a punishment. The father’s next visitation is the weekend coming up 10 days from now, and you’re desperate to keep your child from having to go, fearing more abuse will occur. Your son dreads and fears the visit. Your judge has already ordered a parenting plan and visitation schedule, but now you want to end Dad’s visits permanently.
You race to the courthouse and file a Verified Motion to Restrict the father’s parenting time, and you can’t wait to get an emergency hearing before your judge so you can tell the judge everything your son told you, thereby ending Dad’s visitation. However, given the above circumstances, you’re unlikely to find the relief you’re requesting because the burden for restricting a parent’s visits is high, and so far all you have is inadmissible evidence with which to make your argument.
Colorado law allows for a parent’s visitation to be restricted only when a judge finds that “the child is in imminent physical or emotional danger due to the parenting time or contact by the parent,” according to CRS 14-10-129(4). Some examples of imminent danger are a parenting driving while intoxicated with the child in the car or a parenting physically abusing the child. It’s typically not enough to obtain an emergency restriction because the other parenting is telling the child terrible things about you, or that the other parent is allowing your child to view inappropriate entertainment.
There is also the problem of presenting the evidence you have. In the circumstance above, you can’t go to court and simply relay to the judge what your son told you. That’s hearsay, which is inadmissible as evidence. And while there are exceptions to the hearsay rule, they sometimes take time to prepare, such as having the child report the abuse to a therapist, the police, or social services. So while your natural reaction as a parent is to immediately “run tell the judge” about the bad acts of the other parent, if you haven’t taken the time to properly prepare, it’s unlikely your judge will curtail the other parent’s visits. Even worse, CRS 14-10-129(4) allows the judge to assess attorney fees against the filing parent if the whole action is deemed frivolous.
You have to fight the natural instinct to immediately engage the court. Instead, file a police report, contact social services to begin an investigation, and take your child to a counselor or therapist. These independent parties can help you make your case and get around the hearsay restriction, as can an attorney with experience restricting parenting time. For such an important matter, it’s more important to make sure you can meet your burden than it is to act in haste.