Motions In Divorce and Family Law
Motions are a part of domestic relations court proceedings. A motion is the method to ask the Court for something. Requests are documented in writing as are responses and replies. Some motions can also be made in person at the beginning of a hearing. The court’s answer to a motion is an order. The order is in writing, though initially it may be issued verbally. Here we discuss a few common types of motions and considerations for filing motions as well as providing copies of filings to the other party.Types Of Motions
One common motion is a request for a temporary orders hearing, though this request is most frequently made verbally at the Initial Status Conference. Temporary orders can be issued sooner than permanent orders and may be appropriate in cases where there are urgent matters, such as those involving support of a party, or if one parent is being denied time with children. Before filing a motion, Parties are required to confer with each other on the issue. The reason for this is to encourage Parties to attempt to resolve matters themselves outside of court. Generally either mediation or a settlement conference must occur prior to a temporary orders hearing in addition to conferral.
Motions to modify parenting time are also common. Circumstances can change with parenting. For example one party may want to relocate out of the state. Alternatively, circumstances may occur that lead one parent to believe that a parenting time change would be in the best interests of a child, such as excessive academic absences. There are different relocation standards depending on whether a change in location occurs pre or post-decree. Spahmer v. Gullette, 113 P.3d 158 (Colo. 2005) covers pre-decree cases. In re Marriageof Ciesluk, 113 P.3d 135 (Colo. 2005) covers post-decree cases. There are a number of considerations for relocation:
- What is the current parenting time arrangement?
- What are the reasons for the move?
- Why is the move opposed?
- What is the history of each parent’s relationship with the child?
- What is the age and health of the child?
- Does the child have special needs?
- What is the child’s relationship with each parent?
- If one parent relocates, which parent should have primary care?
- What resources, support systems and educational opportunities exist for the child in the new location?
- Is there extended family in each location?
Another common motion is to modify parental decision-making responsibility. Whereas the initial legal standard for decision-making is the best interests of the child, the legal standard for modification from joint decision making to sole decision-making is endangerment. This is a high standard. Sometimes this can be shown, for example, if a parent will not respond to requests for medical care thereby preventing the primary parent from obtaining medical care for a child.
A less common motion is a motion to reopen a property settlement. If there has ben a material nondisclosure of financial information, a party may move to reopen a property settlement to reallocate property. Generally property determinations are final and can not be modified. Sometimes mediation may be required prior to filing a motion. For example, some people include a provision to mediate before filing any future motion with the Court in their initial agreements.Motion Considerations
It is always important to consider the legal standard and whether the court has the authority to grant what is requested. A motion filed that does not have a foundation in the law can be considered frivolous or groundless and the other party can seek legal fees if the motion is determined not to be valid. It is also important to consider the possible range of results of filing a motion. The legal authority supporting the motion should be cited. Motions can be verified where the party asserting certain facts signs their name to the motion and states that the facts are true to the best of his or her knowledge under penalty of perjury.Service On The Other Party
As with all court documents, a copy of a filed motion must be served on the other party. This can generally be done by mail or electronic service through the courts e-filing system. A certificate of service is attached that shows how service has been made. This can be important if someone alleges that they did not receive notice of a motion. There are some motions that require personal service, such as Motions To Restrict Parenting Time and Motions For Contempt.Stipulations
An alternative to motions is for the Parties to reach an agreement and document it in a stipulation. The stipulation can then be filed with the court for issuance as a court order. It is often best for Parties to reach an agreement as courts often have very little time to get to know the Parties before making important decisions about their lives and those of their children.Turning Change Into Opportunity in Colorado Springs
A Colorado Springs dissolution/divorce and family law attorney can guide you through Colorado Springs legal matters involving the discovery process by negotiating, mediating and litigating. This allows you to focus on moving forward to a better future rather than on spending your time trying to figure out the overly complex court system. Colorado Springs Divorce and family law matters are difficult to navigate alone. The court system is more complex than it should be. Change can be stressful, however it can often lead to a better future. Janko Family Law Solutions helps ensure that your best interests are protected and that you are aware of your legal rights and obligations.
Contact us at 719-344-5523 or complete our online form to set up a free thirty-minute informational consultation. We also have an office in Denver and serve Denver and Aurora and surrounding areas.