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What Can I Do If The Other Parent Withholds The Child From Me Due to Coronavirus?

Hannah van Roekel

On March 25, 2020, Governor Polis issued an executive order requiring most Coloradans to remain in their homes and discontinue travel. The Governor’s Order closely followed the “Stay-at-Home Orders” released by Tri-County Health and Denver’s Mayor, Michael Hancock. The state-wide orders can be found here.

Although necessary to preserve the public safety and health during this unprecedented time, these executive orders have prompted questions for many parents. Unfortunately, some parents will undoubtedly try to capitalize on the current uncertainty and reduce the other parents’ time or contact with the children.

In most instances, the current “Stay-at-Home Orders” carve out large exceptions for necessary and essential travel, which permit travel to parenting exchanges and other required tasks. Specifically, the current executive orders authorize travel out of the home in order to comply with a Court Order. Executive Orders of this nature do not override custody orders, and in most instances, the current stay-at-home orders should not preclude the exercise of parenting time as regularly scheduled.

That said, there are numerous cases and concerns emerging from the Covid-19 outbreak and the wide-ranging reactions from the public. As a number of Colorado Courts have held, the Covid-19 social distancing requirements and generalized concerns do not justify one parent unilaterally withholding parenting time. Without an Order from the Court, there are very few circumstances in which a parent may withhold the child in violation of a custody order, even in these uniquely challenging times.

For those parents who have lost parenting time due to the violation of the Court Order, there may be several options available for enforcement.

As the first line of defense, parents are always permitted to contact law enforcement to request assistance with a parenting exchange or custody dispute. Law enforcement officers generally use their individual discretion in deciding whether to intervene in a custody dispute. However, any parent considering a call to law enforcement should always weight the urgency of the issues against the impact on the children. Although some officers are willing to review a custody order and help to enforce a clear provision, the children may be exposed to the law enforcement, which is often frightening and confusing for a child. This can be an efficient and useful tool in enforcement of a custody order, but it is important to limit the child’s exposure to conflict and weigh your options accordingly.

In addition to law enforcement, there are also a number of enforcement actions available through the Court. Although most Courts in the state are operating on a limited basis, they are, nonetheless, still open and accessible. The most common enforcement tool is the statutory relief authorized by C.R.S. § 14-10-129.5. Specifically, this statute allows the Court to intervene in parenting time disputes. If the Court decides that there has been or is likely to be substantial or continuing noncompliance with the Court Order, it may enter a variety of Orders to enforce the terms and intent of the custody order. To this extent, the Court may order make-up parenting time, family therapy, parenting classes, and/or reimbursement of the other party’s attorney fees, among other relief. Due to the wide-ranging relief and its customization for parenting disputes, C.R.S. § 14-10-129.5 is a very useful enforcement tool and often the most effective course of action.

In addition, parties may also utilize contempt processes when a party has violated a Court Order. Although parents often turn to contempt procedures to address parenting time disputes, the Court is not authorized to order make-up parenting time under contempt statutes. As a result, parties are encouraged to consider other enforcement options that may be available.

In the most severe cases, parties may also consider a Motion to Restrict the other parent’s time with the children. These restriction motions are only appropriate in cases involving endangerment to the children’s physical welfare or emotional wellbeing. Although such extreme measures may be necessary in some situations, parties should speak with an attorney and utilize this relief with the utmost caution, particularly if grounded solely in general health or Covid-19 concerns.

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