Colorado Law provides a statute where a parent can restrict the other parent’s parenting time if the child is physically or emotionally endangered. There are many cases where this would be appropriate and is in the best interest of the child to restrict a parent from unsupervised parenting time, at least on a temporary basis. Even though this may be good for the child, getting the court to restrict a parent’s time is not necessarily an easy task. Below are the 5 reasons why it may be difficult to restrict parenting time:
- Child Hearsay. You may have a difficult time restricting the other parent’s parenting time if all your reasons are based on what your child has told you is happening in the other parent’s house. Your child may be accurately reporting things that are going on in the other parent’s house, and these things may be very concerning, but, for the most part the court will not listen to this evidence based on the “hearsay” rule. It is very difficult (often impossible) to get into evidence information you only know from what your child has told you.
- Patient-Therapist Privilege. You may have a difficult time restricting the other parent’s parenting time if all your reasons are based on what your child has told a therapist. The therapist may have cause for concern, and may be willing to testify for you, but a therapist cannot tell the court this information because it is confidential and privileged information. The only exception is if there is a waiver of this privilege. If parent’s share joint decision-making, the court may not allow one parent to waive this privilege if the other parent is unwilling to do so. As a result, the Court cannot allow the therapist to testify.
- Not Imminent. For the Court to restrict a parent’s parenting time, the Court must find that the concerns are imminent. So, if the bad behavior took place months ago and the other parent is just now trying to restrict parenting time, the Court often will not restrict parenting time even if the Court might have months ago if the motion was timely filed.
- Not the Least Restrictive Means. The Court can restrict a parent’s parenting time, but only with the “least restrictive means” possible. What does that mean? Essentially, the Court is bound to give a parent as much of his or her parenting time as possible without harming the child. Because of this the Court is often looking for ways to stop the bad behavior from affecting the child without actually restricting a parent’s parenting time. For example, if a court has a substance abuse problem, the Court may require testing before parenting time and permit the parent to have parenting time so long as all tests are taken and negative.
- Constitutional and Statutory Right to Be a Parent. When the Court is reviewing these cases, in the backdrop the Judge is considering that each parent has a constitutional and statutory right to be a parent. Accordingly, the Judge has a duty to protect those rights for a parent and unless the other parent has met all the requirements to show that the child is imminently being emotionally and/or physically harmed, the Judge must continue providing the parent with court ordered parenting time.
Despite these difficulties, sometimes it is appropriate and necessary to file a motion to restrict and there may be ways in your specific case to prevail on a motion to restrict. If there are legitimate concerns but we think a client will not prevail on a motion to restrict, we often suggest taking other legal action. If you would like to discuss your situation, please call 720-773-2900 to schedule a free consultation.