Young girl drawing figures of angry father yelling at her.

Should Parent Seek Emergency Child Custody Order?

One dilemma a parent faces when the other parent may be endangering the children is the best way to proceed legally. In Colorado, a motion for emergency child custody is known as a motion to restrict parenting. And a motion to restrict requires alleging imminent harm, but unlike most motions which take months, an emergency motion is set within two weeks.

However, if the parent believes there is a general endangering condition, but not necessarily imminent harm which justifies the court dropping everything to set an emergency child custody hearing, to avoid being the “boy who cried wolf” it may be better to file a normal parenting motion alleging endangerment w/o alleging imminent harm.

The question recently addressed by the Colorado Court of Appeals is whether a parent who filed and lost an emergency custody motion can then file a “normal” endangerment motion alleging the same facts. C.R.S. 14-10-129(2) requires that a motion seeking to change the custodial parent due to endangerment be based upon “facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree.” The decision-making statute, C.R.S. 14-10-131, has a similar requirement.

The purpose of this prohibition is to prevent a parent from getting a second “bite at the apple” – litigating child endangerment at the divorce hearing, and then once those allegations were rejected by the court (or at least considered by the court in its parenting orders), seeking an emergency child custody order and raising those same endangerment allegations over again in an attempt to change the child custody order.

In Wenciker, the mother was the child’s primary residential parent, while the father lived in a different state. In 2019, the father sought an emergency child custody order to restrict the mother’s parenting time pursuant to C.R.S. 14-10-129(4), but that motion was denied at the forthwith hearing two weeks later for failure to meet his burden of proof.

Thereafter, the father filed a motion to appoint a Child & Family Investigator, and to modify the child custody order based upon endangerment so that he would become the primary parent with sole decision-making. This motion, however, did not allege imminent harm, so was set on the court’s normal docket and took months.

After the eventual hearing, the court granted the father’s motion to modify parenting, finding that the child was endangered living with the mother, and that any potential harm caused by changing the residential parent was outweighed by the harm caused by remaining with the mother. (Note – while there were two kids at the time of the hearing, the elder one turned 18 while the appeal was pending, so the decision only applies to the younger child). The mother appealed.

Allegations from Emergency Child Custody Motion

The mother argued that the trial court erred by relying upon the same endangerment claims the father had asserted and lost in his emergency motion to modify custody.

Prior Motion to Modify Parenting Not Same as Prior Decree

However, the section of the parenting modification statutes referenced above require that changing the primary residential parent be based upon new facts after the “prior decree“, not based upon new facts from a prior motion:

Emergency Child Custody after Decree of Divorce Prohibited

“To begin, the plain language of the statutes – specifically their reference to ‘prior decree’ – doesn’t bar a court from considering allegations contained in a previously denied emergency motion to restrict parenting time. The “prior decree” in this case wasn’t the order denying father’s motion to modify; it was the parenting time and decision-making orders that were in place when father filed his emergency motion. Mother offers no basis for concluding otherwise, and we can discern none.”

Wenciker, ¶ 19.

Not in Children’s Best Interests to Force Parent to Choose Between Motions

Moreover, the mother’s interpretation that allegations from a prior emergency child custody motion could not be used in a future motion:

“would have the perverse result of discouraging a parent from filing a meritorious, but difficult to prove, emergency motion to restrict. This is because under mother’s interpretation of the statutory scheme, a parent’s failure to prove endangerment at an emergency motion hearing – a hearing that is required to be held within fourteen days of the filing of the motion – would render those allegations off limits in a subsequently filed motion to modify under sections 14-10-129(2) or 14-10-131(2). This couldn’t have been the result intended by the legislature.

Put another way, mother’s proposed interpretation would present the decision to file an emergency motion to restrict as a fork in the road – either file an emergency motion to restrict or pursue a motion to modify. That’s not how the statute is structured. An emergency motion to restrict isn’t an alternative to a motion to modify; instead, it’s a port in the storm along a continuum of remedies intended to protect the best interests of children in a wide array of circumstances. There’s nothing about the emergency motion to restrict statute indicating that the disposition of such a motion should serve as a barrier to a motion to modify.”

Wenciker, ¶¶ 21-22.

Additionally, there was “substantially more information” available to the court at the longer-term hearing on the motion to modify than was available at the emergency child custody hearing, including the CFI report.

It did not help the mother’s case that there was ample evidence she and the children’s stepfather had emotionally and physically abused the children – the purpose of the parenting statutes is to protect the children’s best interests and well-being, not to provide a technicality to allow a parent to get away with proven child abuse.

The takeaway? This welcome decision recognizes that an emergency child custody motion and a “regular” motion to change the primary parent are not mutually exclusive. And the children should not pay the price because a parent tried first to protect them immediately, especially when that emergency motion means less time for both parents to gather the facts and truly litigate whether there was endangerment.

So how does the Wenciker ruling apply in reverse? What happens when the trial court grants an emergency child custody motion, and then the parent with restricted time files a motion to modify parenting time, seeking to “undo” it? In reality, a parent with restricted parenting time could always file a motion to modify parenting and lift the restriction, and the months it takes for such a motion to be heard by the court provides ample time to obtain the “substantially more information” which motivated this decision to authorize a motion to modify the other way.

Wenciker completes a trifecta of appellate decisions on motions to restrict parenting time within the past two years, the other two being:

The cumulative effect of these decisions appears to be making emergency child custody motions more likely, not only because (1) courts cannot easily deny them summarily without a forthwith hearing, but because (2) at that hearing imminent harm need not be proven, and (3) now, with Wenciker, if the motion is denied, the parent can refile the allegations as part of a “standard” motion to modify parenting time, without alleging an emergency.

For more information on modifying child custody, see our Modification of Parenting Time & Custody article in the Colorado Family Law Guide.

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