Under Colorado law, a divorced parent can ask a judge to restrict their ex-spouse’s custody if there are allegations the child is in imminent physical or emotional danger. The law then triggers a temporary modification to the child’s supervision until the judge can rule on the request.

However, a related provision allows restrictions on a parent’s rights only if continued custody endangers the child’s health or wellbeing. The question for the Court of Appeals was the meaning of imminent danger, and how it interacts with the more general endangerment requirement.

By 2-1, an appellate panel concluded allegations of imminent danger only get a parent an emergency court hearing, where there is no need to actually prove imminent danger exists. The endangerment standard then kicks in.

The law, wrote Judge Terry Fox, “is a means of triggering a hearing within fourteen days and an immediate parenting time restriction pending that hearing.”

Judge Daniel M. Taubman disagreed with that interpretation, while also raising questions about how Jefferson County Magistrate Courtney Denson handled the case of James M. Thorburn and Danielle Jeanette Thorburn.

On Feb. 1, 2021, Danielle moved to restrict her ex-husband’s custody of their young son after he fell and cut his head while in James’ care. Danielle alleged the child had repeatedly sustained injuries while with James over an 18-month period, including a concussion and a split lip. James countered that Lakewood police and the county’s human services department determined there was insufficient evidence the child’s most recent injury amounted to crime or abuse.

The day after Danielle filed her motion, Denson scheduled an emergency hearing and ordered James’ custody of his son be supervised. Under the law, such a requirement amounted to a restriction on James’ parenting time.

At the hearing on Feb. 9, Denson ordered James’ parenting time be subjected to continued supervision and directed him to complete parenting classes. Denson determined the child was endangered while in James’ care due to the “track record” of injuries.

Although Denson told Danielle’s attorney to draft a written order to that effect, he ended up signing a competing order filed by James’ attorney, for reasons unclear on appeal. Even though the law requires rulings no later than 14 days after one parent files a motion to restrict the other’s custody, Denson signed James’ draft order on Feb. 26 — 25 days after the original motion.

The two sides had different explanations for why Denson signed the wrong order. Danielle’s attorney told Colorado Politics Denson had admitted to making a “mistake,” while James’ lawyer suggested the findings of the human services department influenced Denson’s thinking. A district court judge declined to overturn the magistrate’s order and James turned to the Court of Appeals.

James primarily argued Denson applied the wrong definition of imminent danger, which the magistrate described as a “certainty of the harm happening whether it is days, weeks, or months in the future.” James also believed the evidence did not suggest imminent harm to his son.

“Effectively, the Magistrate concluded, as a matter of law, that if a child will experience childhood injuries sometime in the future, such possibility constitutes imminent danger caused by the parent,” wrote James D. Thorburn, the lawyer and father of James M. Thorburn.

Danielle’s attorneys countered that regardless of Denson’s definition of imminence, the magistrate correctly applied the only standard that mattered at the hearing: the endangerment of the child.

The Court of Appeals panel’s majority agreed with Danielle that the law laid out two standards for the different but related stages of a custody case. To get an emergency hearing for restricting one parent’s custody, the other parent has to allege, but not prove, imminent danger. At the hearing, a judge must then find the child is endangered in order to continue the parenting restrictions or impose new ones.

Fox, writing for herself and Judge Christina F. Gomez in a July 21 opinion, explained that was exactly how Denson proceeded in the case.

“The record supports the magistrate’s endangerment finding,” Fox added, citing the injuries the child sustained in James’ custody.

Taubman, a retired judge who sat on the panel at the chief justice’s assignment, believed imminent danger was not simply something to be alleged, but needed to be proven as well. He also found fault with Denson’s definition of imminent harm, saying it lacked the key element of immediacy.

“Here, for example, mother alleged that the son had been subject to several head injuries during an eighteen-month period. She did not allege that the son was in imminent physical danger,” Taubman wrote.

Although he would have reversed Denson’s order for applying the incorrect definition of imminent harm, Taubman had further concerns with Denson’s decision to sign James’ written order instead of Danielle’s. The order not only conflicted in places with the magistrate’s spoken findings at the hearing — a fact Fox acknowledged in the majority opinion — but also came much later than the 14-day deadline in state law.

“I further conclude that this constitutes reversible error because it limited father’s constitutional right to the care, custody, and control of his son while he was limited to supervised visitation,” Taubman elaborated.

Kate O. Miller, a lawyer for Danielle, agreed with the majority’s conclusions and said the clarifications would better protect children in the future. She also painted James’ decision to submit an order to the magistrate and then challenge it on appeal as “a sick game.”

James D. Thorburn, the lawyer for his son, worried the majority’s decision would lead to “a free-for-all of emergency motions” alleging imminent danger. Attorneys, he suggested, may increasingly seek hearings to restrict the other parent’s custody, knowing they would not need to prove the claims of imminent danger.

“My concern is that you’re gonna seek a spike of reporting of abuse as a result of this case,” he said.

The case is In re the Marriage of Thorburn.