Motion to Restrict Parenting Requires Hearing in Colorado

Gavel banging on cubes forming the word Appeal

OK, the title doesn’t perfectly capture the essence of a brand-new ruling that the Colorado Supreme Court issued today, but web titles have limited space constraints. A proper summary of the holding would be “When a parent has filed a motion to restrict parenting time alleging with particularity its grounds, the trial court must grant a hearing, and cannot deny one by finding that even if true, the facts would not support a restriction.”

In Colorado, upon a party filing a motion to restrict parenting, the other’s parenting time is automatically restricted until a hearing can be held:

“A motion to restrict parenting time or parental contact with a parent which alleges that the child is in imminent physical or emotional danger due to the parenting time or contact by the parent shall be heard and ruled upon by the court not later than fourteen days after the day of the filing of the motion. Any parenting time which occurs during such fourteen-day period after the filing of such a motion shall be supervised…”

C.R.S. 14-10-129(4) (Emphasis added).

Old Rule – Summarily Deny “Facially Insufficient” Motion to Restrict

But will any old motion do? In 2008, the Colorado Court of Appeals held that a trial court can be the “gatekeeper” to determine whether the allegations in a motion to restrict parenting were facially insufficient, and if so, no hearing was needed:

“facially insufficient” means that, after taking all the allegations in the verified motion as true, there is no set of facts or circumstances that could give rise to the conclusion that the children are in imminent danger of  physical or emotional injury. serious enough to warrant a hearing.”

Slowinski.1In re: Marriage of Slowinski, 199 P.3d 48, 54 (Colo.App. 2008).

With this holding, Slowinski applied the standard that a motion to restrict parenting may be dismissed for “failure to state a claim upon which relief can be granted”  – what lawyers think of as the Colo. R. Civ. P. 12(b)(5) standard. In other words, even if everything alleged were true, so what? It would still not result in the degree of imminent harm required to justify restricting the other parent’s custody.

In Wollert,2In re: Marriage of Wollert, 2020 CO 47.​ the trial court denied the father’s motion to restrict the mother’s parenting time without a hearing, on the grounds that while the alienation he was alleging was serious, it needed to be resolved after a full hearing, not on an emergency basis.

The father appealed denial of his motion to restrict parenting, and in an unusual move, the Colorado Supreme Court granted father’s Colo. R. App. P. 21 petition to exercise original jurisdiction without waiting for the normal appeals process. And the court reversed the trial court, finding a hearing was required before a trial court can reject a parent’s allegations of child endangerment.

Child Endangerment Alleged in Motion to Restrict

The parents in Wollert had a 12-year history of contentious litigation. The Supreme Court noted that there were 650 docket entries, and in those 12 years had numerous professionals appointed, including 3 Child & Family Investigators, a Parental Responsibilities Evaluator, 2 reintegration therapists, and others.

Motion to Restrict Parenting Alleging Alienation

The first reintegration therapist concluded that the mother had been alienating the child from the father, and after 17 months on the case, the second reintegration therapist agreed, issuing an 18-page treatment summary with specific examples of mother’s alleged alienating conduct. The therapist concluded that the mother’s “severe parental alienation” was putting the child in “imminent psychological and emotional danger,” and constituted child abuse. In other words, the child was endangered – this was one parent who could not credibly claim a free speech right to badmouth the father!

The father, who already had a motion to modify parenting pending, promptly filed a motion to restrict the mother’s time, incorporating the therapist’s allegations. The mother opposed the motion, attaching a copy of a letter from the child’s individual therapist saying the child may well commit self-harm if placed in the father’s custody.

The issue facing the Colorado Supreme Court was:

“how does a district court discern whether a motion to restrict satisfies the condition set forth in the statutory provision? Stated differently, what standard must the court use to determine whether a motion to restrict adequately ‘alleges that the child is in imminent physical or emotional danger due to the parenting time or contact by the parent’?”

Wollert.3In re: Marriage of Wollert, 2020 CO 47, ¶ 22.

The trial court denied the father’s motion without a hearing, finding there was “no set of facts or circumstances that could give rise to a conclusion that the child [was] in imminent physical or emotional danger.” Wollert.4In re: Marriage of Wollert, 2020 CO 47, ¶ 3. The Supreme Court reversed.

Motion Needs “Particularities” of Child Endangerment

Colo. R. Civ. P. 7(b)(1) provides that a motion “shall state with particularity the grounds therefor, and shall set forth the relief or order sought.” In Wollert, the Court held that this provision provided the only basis for a trial court to deny a motion to restrict without granting a hearing:

Specific Details of Child Endangerment

“Simply parroting the statutory buzzwords – ‘the child is in imminent physical or emotional danger’ – will not suffice. Rather, a motion to restrict must state with particularity the bases for seeking to restrict parenting time, and if it fails to do so, the court should deny it outright without a hearing. But if a motion to restrict does satisfy the particularity requirement in Rule 7(b)(1), it ‘shall be heard . . . not later than fourteen days after the day of the filing of the motion.’ § 14-10-129(4). In other words, when a motion meets Rule 7(b)(1)’s particularity requirement, the statute gives the court no choice but to hold a hearing within fourteen days. The court may not resolve such a motion without a hearing.

Wollert.5In re: Marriage of Wollert, 2020 CO 47, ¶ 27.

The policy behind this requirement: “Section 14-10-129(4) requires courts to err on the side of protecting children, even if that means holding a hearing on a Rule 7(b)(1)-compliant motion that, at least on paper, may not appear to have a great chance of prevailing.” Wollert.6In re: Marriage of Wollert, 2020 CO 47, ¶ 40.

In a classic example of understatement, the Court recognized that its holding “does not set an especially demanding standard.” ¶ 28. And to replace the trial judge as gatekeeper, it is counting on a combination of attorneys acting as professionals and not filing frivolous motions, plus the threat of sanctions against a party who does file a frivolous one.

This case is part of an increasing trend in the Colorado Court of Appeals to require hearings in post-decree child custody matters, rather than letting trial judges deny motions summarily. See our article in the Colorado Family Law Guide for more information on modification of parenting time in Colorado.

Dissent: “Enough Is Enough” Does Not Show Imminent Harm

There was a vigorous dissent from two justices, pointing out that the allegations in the father’s motion, while serious, were simply “more of the same” rather than something brand-new that required a trial court to drop everything and conduct a hearing:

“There is a difference between imminent harm and ‘enough is enough.’ The former involves immediacy because something is about to happen; the latter reflects frustration over the fact that bad behavior continues and a situation is not getting better. Father conflates the two by mistaking ongoing parental alienation with an emergency warranting the extreme consequences arising from emergency motions under section 14-10-129(4)”

Wollert.7In re: Marriage of Wollert, 2020 CO 47, ¶ 43.

The dissent also noted: “But my point is that extremely serious allegations do not equate to imminent danger allegations. For the purposes of section 14-10-129(4), that distinction is crucial.” ¶ 53.

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