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Child Custody Case Study - Part 3

Monday, 05 January 2015

jurisdiction2This is part 3 of the Child Custody Case Study. To have the best understanding of this case study please refer back to the previous articles starting with this one - Child Custody Case Study: The Facts

Part 3 covers how the court failed to give Maggie Bright enough parenting time, and ignored a public policy to facilitate frequent and regular contact between parents and their children.

When Judge Bristol came back with his bombshell orders of April 1 and April 20, 2012, there was not a single earlier decision about custody, parenting and decision-making that was left untouched.

Maggie Bright was shocked. But in the midst of this shock, her attorneys at Marrison Family Law saw judicial error and opportunity. They strongly suggested that Judge Bristol’s decision was an abuse of discretion and against public policy when so little parenting time was awarded to Maggie, and so heavily restricted for little apparent reason.

Where Maggie before had residential custody and would share decision-making with Steven Smith, Trial Judge Bristol had ordered Steven Smith to get residential custody and the sole ability to make decisions, and also severely restricted Maggie’s visitation. 

In order to make changes to a parenting plan or adjust decision-making, a trial court must work with the established “Best Interest of the Child” factors laid down by the Colorado legislature.

But Judge Bristol had ignored the requirements of established BIC standards, and violated a strong public policy that suggested parenting agreements err on the side of attachment, contact and visitation. Now all Marrison Family Law had to do was convince the appellate court, which is never a simple undertaking.

Maggie Bright, a hard working mom, had solid Colorado caselaw in her corner

She was a hard-working mother who held down a job as a chemist, and had hashed out an earlier agreement with her child’s father where she would have residential custody and shared decision-making.

After April 20, 2012, all of that had changed. What used to be a close relationship with her six year-old son Ethan would now become an exhausting long distance effort to just stay in touch.

Ethan was ordered by Judge Bristol to go live in Iowa with his father, a member of the military who was shipping out on active duty. Ethan would lose the companionship of his brother, and go live with the biological father who was going overseas on assignment and leaving most of the parenting to Father’s new wife in Iowa who had only met the child once before.

"Maggie Bright may not have had Judge Bristol on her side, but Marrison Family Law felt that caselaw was in her corner."

Quoting a 2002 Colorado appellate court decision in the Marriage of Martin,1, Maggie Bright’s brief noted that “a trial court must exercise discretion in determining parenting time consistently with the expected public policies of encouraging continuing contact and frequent visitation between each parent and the children.”

What did that mean? It meant that unless Judge Bristol had an obvious and supportable reason to do otherwise, Maggie Bright should get to be with and see her child much, much more.

Marrison Family Law also looked carefully at another similar Colorado case, In the Marriage of Hatton.2 There, the court did something similar to this case when the father had been awarded custody of the children, denying the mother any parenting visitation for 30 days and then restricting her parenting time to “therapeutic contact” after that.

When the parties continued to quibble about parenting issues, the Hatton trial court slammed the door shut, and denied the mother any contact except for what was approved by the father. The oldest child was ordered to be placed in a boarding school, and then maybe the mother could look at increased parenting time.

Unlike Maggie Bright, the mother in Hatton had diagnosed mental health problems

Ms. Hatton had been evaluated for mental health issues. Unlike Maggie Bright, she had been found to have “a seriously impaired capacity for reality testing”, and had met the criteria for Delusional Disorder of a persecutory (nonbizarre) type.

Maggie Bright’s own mental health testing did “not reveal any significant psychopathology.” and Dr. Holmes' own report states that “there is no indication of mental health issues” challenging Maggie. Yet in the Hatton case, the appellate court found that a biological mother who had a confirmed delusional disorder may be entitled to additional parenting time.

"Dr. Holmes' report states that Maggie had no indication of mental health issues."

Most importantly, the appellate court order reversing and remanding the Hatton case said that the trial court “failed to consider public policy of encouraging frequent and continuing contact..” with her children.

The Hatton court understood what Judge Bristol failed to comprehend. In most cases, consistent with Colorado law and policy,3 the children would be much better off if they have a good relationship with both parents.

What the appellate court decided about whether the revised parenting time and decision-making orders passed legal muster

The court heard evidence about alleged child abuse, hospitalization, manipulation and personality problems, and a variety of other areas, but Judge Bristol’s final two orders were not specific enough to satisfy the demands of the Colorado legislature when the “best interests of the child” are being considered.

Judge Bristol’s findings did not pinpoint which BIC factors were considered, and why. Although a trial court does not have to explain its decision on every statutory factor, the finding must be clear enough to show that a sufficient foundation of findings are made.
That was not done by Judge Bristol, and the ruling was vacated and remanded to the trial court with instructions.

For the time being, at least, Maggie Bright had won.

The terrain surround family law in Colorado can be treacherous. Unfairness and pre-judging can rip apart the hopes of even an honest and hardworking parent just trying to move forward, work hard, and raise a child.

Fortunately, if the people at Marrison Family Law are in your corner, your chances of getting your story heard, and getting a fair trial are greatly improved.

1 in re the Marriage of Martin, 42 P. 3d 75, (Colo. App. 2002).
2 in re the Marriage of Hatton, 160 P.3d 326 (Colo. App. 2007).
3 C.R.S., Sections 14-10-104.5, and 14-10-124(1).

 

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MPatMarrisonFor over a quarter century, we have helped people during what is often the darkest time in their lives. Divorce is not easy even under the best of circumstances. For most people, family is central. Having something go wrong in the family can have a ripple effect that extends beyond the home and into other areas.

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