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Contempt Motion vs Motion to Enforce

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I want to talk to you a little bit about your remedies when the other parent most likely in a custody case, child custody case is not complying with the parenting orders from the court. You really have a couple different remedies that you can pursue in court, and that would be in the filing of a verified motion for contempt, or a motion to enforce parenting orders.

A contempt proceeding is governed by a different set of laws than a motion to enforce parenting orders. In a contempt action, the party who’s filed the contempt is held to a higher standard of a proof beyond a reasonable doubt. In a contempt action, the court can issue a punishment to the offending parent or the parent who’s in violation by saying, “I’m gonna order you to, uh, remedy the situation. I’m gonna order you, uh, to fix the problem”, or the court can even send that parent to jail which is called punitive contempt.

There is also another avenue and that is a motion to enforce parenting orders. In that, the court has many more remedies and can issue a relief to the party that’s been the subject of a violation of a custody order. The example that comes to mind is when a parent has orders from the court to pick up the children for Christmas holiday, the orders may say that that parent can pick up the children at noon on Christmas Day, and that parent comes to the door and finds that the other parent and the children are not home.

There’ll be no Christmas for that parent that year because the other parent has either intentionally, or willfully or neglectfully taken off with the children depriving the other parent and the children have parenting time with the other parent. In that situation, if a motion is filed and that parent has indeed violated a parenting order, one of the remedies is for the court to issue attorney’s fees for the parent that’s violated the court order. This is another reason why it’s always important to consult with an attorney that is aware of the options and what the law says so that you can enforce your parenting rights at all times.

Father’s Rights vs Mother’s Rights in Colorado

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This topic concerns whether Colorado is a Mother’s Rights state or a Father’s Rights state in custody actions. I’m gonna talk to you a little bit about the law when it concerns whether or not Colorado favors mothers over fathers or fathers over mothers. In fact, in Colorado, the law is gender neutral. That means that the court makes a decision about what’s best for a child regardless of whether or not the parent who is requesting parenting time or primary care is a man or a woman. It is not something that a court is even allowed to consider whether one parent is female or male.

I’ve often heard advertising from lawyers stating that they are a father’s rights law firm and I have to chuckle when I hear that because obviously that advertisement is meant to place fear into the the heart of a father who’s seeking parental rights. Unnecessarily, that father should know, just like all mothers should know, that when a judge decides parenting time and custody, a judge is doing that regardless of gender. That means that the judge is colorblind and is not going to prefer a man or a woman, and a father or a mother should not have preference in a custody case.

A court has to carefully consider the child’s best interest. The court is going to look at what kind of pattern of parenting time has taken place between the parties, how are the children or the child bonded with each parent. And this is another serious, thoughtful consideration that you should be making when you are involved in one of these cases, so that you can come up with a strategy that you know a judge is going to be looking at in deciding your child custody case.

Filing an Emergency Motion

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I want to talk to you a little bit about emergency motions and what happens when a parent files an emergency motion. Primarily, these emergency motions are about custody and visitation. So I want to give you a couple examples as to what the law says.

The most common type of emergency motion is one where a parent asks the court to suspend or restrict the other parent’s parenting time. A lot of people say, “Can a judge do that? Can a judge restrict my parenting time?” The answer is yes. A court has the authority to do that. Primarily, what you see in those cases is that the child’s physical, emotional, or developmental well-being has been significantly impaired by a parent’s behavior or conduct.

I can give you quite a few examples of that, but the one that most comes to mind is a situation where a parent presents a danger to a child. This is called the Endangerment Standard. When this happens, of course, a motion has to be filed, and the court, upon receipt of the motion, will set the matter for an emergency hearing. Until the emergency hearing is set, parenting time will be suspended. That means that there won’t be contact between the parent who has visitation and the children pending the hearing.

At the hearing, the court has to go through a test to see if endangerment exists. Is the child’s safety at issue because of a parent’s drinking of alcohol in excess, drug addiction, or other kinds of behavior like domestic violence perpetrated against the other parent? If the court finds that a child is being endangered, that there is a safety issue of some kind, then the court can set the parameters for visitation.

Family Law Cases Involving Children

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In Colorado, there are essentially two different kinds of cases that involve children. These cases are called allocation or parental responsibilities, which are actions between parents or third-parties that involve children. There are also cases filed as divorce cases where the parties have children.

As a lawyer, I spend much of my time arguing for the best interest of children. Young children and adolescents are impacted in these kinds of cases in different ways; most of the time, young children will continue to hope their parents will get back together, while adolescents tend to rely more on their friends or outsiders rather than family to help adjust to this massive change in their lives.

Children going through a divorce or a custody situation are going to have to deal with the consequences of a fractured home of parents that are not going to be living in the same household. Maybe mom and dad are not going to be involved in decision making the same way. In many of these cases, a parent moves to another state or out of town, and the parenting time requires the child or children to be shuffled back and forth—all of which are major adjustments for children.

Depending upon the age of the child, there’s going to be dynamic changes to that child’s life and how they can adjust to these changes. I feel that if a parent really cares about their children it’s important to sit down and discuss what’s going to happen in the future with them, and that they get their children the kind of emotional help they need to be able to deal with the future of a separated home.

Duties of Parents to Co-Parent

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Colorado is governed by the best interest standard. The best interest standard when you’re talking about children, parenting time, and decision making is what the court is going to consider in entering its orders in the absence of an agreement.

Now parents are free to come up with parenting plans in custody and divorce cases, but if they don’t come up with agreements, the court is going to apply Colorado Revised Statute 14-10:124 in determining decision making and parenting time. In all cases involving the best interest of the children, the court must make a decision based upon the factors in the best interest law. That means the court will do an analysis to determine what is in the child’s best interest and what has been the actions of the parent to co-parent. Are the parents able to get along? Are they able to discuss the child’s well-being together and make decisions together? There is always a duty no matter what for both parties to encourage and foster a loving relationship between the child or children and the other parent.

This means that a judge ultimately will decide is a parent involving the other parent in decisions and parenting of a child. Is the other parent supporting the child’s relationship with the other parent? And often times, we find out that a parent is retaliating or vindictive in keeping a child from the other parent or denying the other parent contact. An example of that is when a parent is intentionally cutting off the phone calls between the child and the other parent. That’s not encouraging and fostering a loving relationship between the child and the other parent.

So you should be mindful that your actions and your behavior when you’re going through a custody case and you’re going to be receiving orders in the years to come, you always want to encourage and foster a loving relationship between your children and the other parent.

UCCJEA and a Child’s Home State

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In Colorado and most of the 50 states regarding the definition of a child’s home state is dictated by the Uniform Child Custody Judicial Enforcement Act. This act says that a child’s home state is where the child has lived for at least 182 days prior to any court action.

If a parent gets proper orders or permission from the other parent to leave Colorado with a child or children, the question becomes what happens next? A parent can register the case in the child’s new state. An example would be if the parents went through a divorce in Colorado and the father agreed that he would have parenting time, but the mother would be the primary parent and wishes to relocate to the state of Georgia to be closer to her family, and the father has consented to that, and the judge has issued an order approving that.

After six months passes from the time that the orders were entered in Colorado, the mother may be able to make application in the state of Georgia to transfer the case from Colorado to Georgia, arguing that it’s more convenient to have the Georgia court address post-decree disputes, custody disputes and visitation disputes in Georgia now that the children have been away.

By the same token, let’s assume that parents have no custody orders and they’ve just moved to Colorado. Before they can file any action in the state of Colorado, the children have to be here for 182 consecutive days before it is appropriate to file any action here.

There are some exceptions to that in cases where there are certain emergencies and that’s why it’s always good to consult with a lawyer regarding the filing of custody actions in Colorado when it’s questionable as to how long the children have been here and what proof you have that Colorado is the children’s home state.

What Does “Best Interests of the Child” Mean?

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This post will discuss Colorado’s law that pertains to parenting and to the best interest of the children and questions that are asked about whether or not the law favors mothers over fathers or fathers over mothers. The best interest statute in Colorado was really crafted to not play any favorites with one gender or the other, and the statute itself, which is Colorado Revised Statute 14-10-124 recognizes that children should have both parents involved in their lives regardless of gender. That doesn’t mean that there are circumstances that would give a father more parenting time than a mother or vice versa, but is Colorado a state that favors fathers over mothers or mothers over fathers? I think the clear answer is no, it does not.

It’s always important to talk to an attorney who’s been doing these cases for a very long time before you step into the courtroom and have an unrealistic expectation that because you’re a mom or because you’re a dad, you’re going to get preferential treatment or more parenting time than the other parent, and I think it’s important to understand that the law doesn’t play favorites. What it does is say that children are entitled to have both parents involved in their lives, involved in their decisions, and equal parenting time whenever possible.

What Kind Of Evidence Do I Need That The Other Parent Is A Perpetrator of Domestic Abuse, or Has An Alcohol or Drug Problem?

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Often times clients will ask me, “What kind of evidence do I need that the other parent is a perpetrator of domestic abuse, or has an alcohol or drug problem?” Well usually that means that there must be some sort of objective evidence. In other words, you just can’t come to court and say I believe the other parent has a meth problem, or I believe the other parent has an alcohol problem. You need to have some independent evidence of that.

Like what? Well it usually involves maybe a conviction for DUI, a drug possession situation, photographs or evidence independently that there were drugs in the house, that a parent left when children there.

The other kinds of evidence that is important would be if a parent is saying that the other parent is dangerous, because they have an anger or domestic violence problem. Is the number calls that the police have responded to the house, or home where the family has lived. You would get the police reports, or the police call reports to show the number of calls, and how often the police have come. Has there been a conviction for harassment or domestic violence?

These are critical factors for the court in any kind of custody case. You’ll find that a lawyer who has a lot of experience in taking these cases to court and appearing in front of the judge, is going to know and be able to tell you what kind of evidence is really going to be significant that a court will rely on.

Custody Rights For Grandparents or Non-Parents In Colorado

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Today I want to talk to you a little bit about grandparenting rights and circumstances where non-parents can have custody rights or parental responsibilities as they’re called in Colorado.

Years ago, there was a case that was decided by the United States Supreme Court called Troxel versus Granville. You should look it up and read that case. It’s a very interesting case. It basically says that the Supreme Court said that parents have a fundamental liberty interest in the care and custody of their children, but there are exceptions, so I want to talk to you a little bit about those.

What do you do when two parents have been involved in drug use for an extension of time and they’ve given the young children to one of the grandparents? I had a similar case like that in the last year where both parents were sent away to prison, one to a state prison, one to a federal prison, and the grandparents were raising the children because the parents were unavailable and unable to raise the children. The law in the state of Colorado says that if that’s what is the situation, a grandparent, or grandparents, or non-parents, can file a petition for allocation of parental responsibilities to obtain the very same rights that a parent would have with respect to decision-making and parenting time, holiday parenting time, as would parents, as if parents had filed the case. This gives grandparents custody rights.

Oftentimes in these cases, parents do not agree that the grandparents should have custody rights and that sets up a disputed legal case between grandparents and natural parents over the best interest of the children. You can also have non-parents, like an aunt, or an uncle, or a friend, who has had custody of children file a parental responsibilities case because of the amount of time that they’ve provided care for a child and how the biological parents have relinquished the care to a non-parent like an aunt or uncle.

You should consult with an attorney to determine whether or not you, as a grandparent or a non-parent, have such rights and can file a parental responsibilities case.

What To Do When A Child Removed or Taken Across State Lines

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What you should do when you have child custody orders from another state, and let’s say that the parent who has visitation is here in Colorado and the other parent is not returning the child. What do I do then?

You’ll find that the police here in Colorado are not going to act on another court order from another state unless a Colorado judge has authorized the police to do something.

We’ve been very successful in getting children back to their lawful custodial parent when this happens. The process involves registering a foreign decree, that’s what it’s called, from another state into Colorado so that a Colorado judge can take what they call “judicial notice” of the child custody orders and enter orders for the police to assist you in getting the child back.

It’s a two-step process. Step one is to register the foreign decree from the other state and, two, to seek the Colorado courts ruling that would allow you to use law enforcement in the state to help you get the child back.