Filing an Emergency Motion

/0 Comments/in /by

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

/0 Comments/in /by

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

/0 Comments/in /by

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

/0 Comments/in /by

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?

/0 Comments/in , , , /by

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?

/0 Comments/in , , , /by

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

/0 Comments/in , , /by

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

/0 Comments/in , , , /by

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.

How To Establish Parenting Time

/0 Comments/in , , , , /by

Oftentimes, clients will call and they say, “How is the judge going to decide parenting time? What is parenting time?” Parenting time is established by a statute called the best interest statute, it’s Colorado Revised Statute 14-10-124. If you take a look at the statute it’s got different parts to it. The first part you’ll see is a section that deals with decision making. That’s important for you to understand if there has been domestic violence in the relationship that can be established, because if domestic violence has been established against one of the parents, then decision making will be awarded to the parent who is not the perpetrator of domestic violence.

The other way that parenting orders are entered is when the court considers all of the factors in the best interest statute and that would include parenting time, holidays, and how the child is picked up and dropped off for parenting time and when that is to occur. So a typical custody case involving either a divorce, or legal separation, or an allocation of parental responsibilities is going to require the parties, the lawyers to get together, go over the best interest statute and determine what kind of a parenting plan is fair to the children in the case. It’s not something that’s fair to the parents, but it’s in the best interest of the children.

It’s also not based upon fitness of parents, although that issue certainly is relevant for the court. An example of that is whether either parent has a mental illness or an emotional illness that may affect parenting, or something like substance abuse or alcohol use which is a factor in what the court does for parenting time.

How do I get my child back from the other parent when I don’t have any court orders?

/0 Comments/in , , , /by

Today I want to discuss with you a frequently asked question that parents raise, and that is, “How do I get my child back from the other parent when I don’t have any court orders?” Typically what happens is that if parents are married, they’re going to file a divorce action, and the court’s going to then support the orders in the divorce, but when parents aren’t married, there’s an allocation of parental responsibilities action that has to be filed. If you have no court orders entered, and let’s just say that the other parent and you have an agreement where you’re going to share the parenting time and that other parent says, “Well I decided that we’re going to move to Denver and I’m going to keep the child.” What do you do? No court orders.

My advice is that you immediately seek to file the petition. It’s called a petition for allocation of parental responsibilities, so that a judge can establish some orders because without court orders, you’re not going to be able to have a court get a child back into your care or shared parenting care. I want to discuss with you what parental kidnapping or an abduction is. In order to establish that there’s been parental kidnapping or an abduction, there must be some sort of legal action that’s been filed, preferably a court order is in place, or a summons. Let me tell you what that is.

A summons is what would be served on the parties. Both parties would be bound by a summons and it states that a child cannot be removed from the state of Colorado once an action is filed. What this means is that if you had filed the divorce case and you have served the other party, or you filed a child custody case, like a parental responsibilities action, and you’ve served the other party, you’re going to have the process server serve them with a summons that includes an automatic injunction that prohibits that other parent from taking the child away from Colorado without a court order. A parental kidnapping case or an abduction case means that a parent has violated that court order. A violation of that court order means that you could get attorney’s fees against the other parent, or sanctions against that other parent. The police typically are not going to act unless a judge in Colorado has issued an order saying that a parent has violated a lawful Colorado order that a child not be kidnapped, removed or abducted.

One other important feature to mention. An abduction of the child is actually two things. The wrongful taking of the child. Let’s suppose you have parenting orders and it says every other weekend, and the other parent shows up and takes the child out of school on a Wednesday. That’s an abduction. Let’s say that the other parent is supposed to return the child to your care on Christmas Eve at 4:00 and that parent says, “Forget it. I’m not giving the child back.” That’s called a wrongful retention of a child and that’s also an abduction of a child and you should hire an attorney to immediately file an emergency motion to get the child back.