By Mike Miller
The Colorado legislature has given families in conflict more choices to “design their own remedy” in family disputes before the Court. Attorney Mike Miller said these new laws, which went into effect on July 1, 2005, are helping families work together more amicably, avoid escalating conflicts and avoid repeated visits to the Court.
“It was a remarkable year for changes in family law with respect to children, parents and minimizing family conflict during and after divorce,” Miller said. “With these changes, we are able to help clients be better parents and build stronger families.”
Until this year, a Colorado judge had the authority to appoint only a “Special Advocate” to help families in conflict, Miller explained. The Court used the term of Special Advocate to identify a neutral third party whose biggest concern was, broadly speaking, “the best interests of a child or children” in dissolution of marriage actions or a post-decree matter.
The legislature said last year that the Special Advocate’s role was too broadly defined, limiting his or her usefulness. Therefore, it has created four new and distinct categories of family advocates, with very specific statutory powers: a Child & Family Investigator, a Parenting Coordinator, a Decision-Maker and an Arbitrator.
The Court may appoint any one of these types of advocates, or even more than one at a time, to perform different and separate duties. “In some cases now, the Court identifies a problem and appoints the advocate against the family’s wishes,” Miller said. “But more frequently, I am seeing families request a Parenting Coordinator, or other type of advocate, because they want to create more harmony and cooperation within their family.
“Conflict hurts kids,” said Miller, a family practice attorney with nearly 30 years’ legal experience. “These new advocates help children and empower parents to make positive changes in their families. They mentor parents, help families avoid legal and Court costs and help unclog the domestic dockets.”
Child & Family Investigator
The Court may appoint a child and family investigator either by individual motion or Court action in a domestic relations action that involves allocation of parental responsibilities. The same person may not serve as both a child’s legal representative and investigator
The Court-appointed investigator may be an attorney, a mental health professional, or any other individual with appropriate training, qualifications, and an independent perspective acceptable to the Court, Miller said. He or she investigates, reports and makes independent recommendations as specifically directed by the Court pursuant to the appointment order, always taking into consideration the relevant factors for determining the best interests of the child.
The investigator shall consider the wishes of the child, and must disclose them to the Court, but isn’t obligated to adopt the child’s wishes in making his or her recommendations to the Court unless they serve the child’s best interests. The investigator may be called to testify as a witness regarding those recommendations.
Typically, a child and family investigator’s fees are shared by the parties pursuant to Court Order but if the responsible party is indigent, the state may pick up the costs.
Parenting Coordinator
Parenting coordinators are neutral third parties with appropriate training and qualifications who assist the parties in resolving disputes concerning parental responsibilities. The Court appoints a Parenting Coordinator upon motion by either party, or by written agreement of the parties.
The Court may also elect to appoint a parenting coordinator if:
• The parties have failed to adequately implement their parenting plan;
• Mediation has been determined to be inappropriate, or, if not inappropriate, that mediation has been attempted and was unsuccessful; and
• The appointment of a parenting coordinator is in the best interests of the child or children involved in the parenting plan.
A parenting coordinator assists the parties in implementing the terms of the parenting plan and may handles duties such as:
• Assisting the parties in creating an agreed-upon, structured guideline for implementation of the parenting plan;
• Developing guidelines for communication between the parties and suggesting appropriate resources to assist the parties in learning communication skills;
• Informing the parties about resources to assist them in improving parenting skills;
• Assisting the parties in realistically identifying the sources and causes of conflict between them, including but not limited to identifying each party’s contribution to the conflict, when appropriate; and
• Assisting the parties in developing parenting strategies to minimize conflict.
A party who has acted as an evaluator in the case, or a person who has served as a representative of the child cannot be considered for appointment as a parenting coordinator. The Court may elect to appoint, however, a person who has served or is serving in a case as a Child and Family Investigator to serve in the same case as the Parenting Coordinator, upon the agreement of the parties. It does not work the other way, however, in that the Court may not subsequently appoint a party serving as the parenting coordinator to act as a child and family investigator in the same case.
Parenting coordinators are appointed for a specific period of time up to two years. Upon agreement of the parties, the Court may extend, modify or terminate the appointment, or allow the Parenting Coordinator to withdraw . The Court determines how the parties will divide the costs of the Parenting Coordinator; the state is not responsible for payment of those fees.
Under the new laws, a parenting coordinator shall not be competent to testify in official proceedings and may not be required to produce records about events during his or her appointment. However, the parenting coordinator is not prohibited from testifying or producing records to the extent testimony or production of records by the parenting coordinator is necessary in an action by the parenting coordinator to collect fees from a party to the action.
Decision-Maker
The Court may appoint a Decision-maker with binding authority to resolve disputes between the parties as to implementation or clarification of existing orders concerning the parties’ minor or dependent children. “These disputes include issues such as parenting time, scope of parental decisions, and child support,” Miller commented.
The Decision-Maker alone may be appointed in a family dispute, or may be appointed in addition to the appointment of a Parenting Coordinator or an Arbitrator (see below) at any time after the entry of an order concerning parental responsibilities and upon written consent of both parties. The Decision-maker has authority to make binding determinations to implement or clarify the provisions of an existing Court order consistent with the substantive intent of the Court Order. The decision-maker appointed may be the same person as the parenting coordinator.
Once appointed, the Decision-maker establishes written procedures for making determinations, which must be approved by the parties before the Decision-maker goes to work. If a party is unable or unwilling to agree to the Decision-maker’s procedures, the decision-maker is allowed to withdraw from the matter.
The Decision-maker puts all decisions in writing, files them with the Court and mails them to the parties or their counsel. All decisions are effective immediately upon issuance and continue in effect until vacated, corrected, or modified by the Decision-maker or until the Court enters an Order pursuant to a de novo hearing (see below).
Parties are allowed to file motions with the Court requesting that the Court, pursuant to a de novo hearing, modify a decision of the Decision-maker. If a Court grants a party’s request for a de novo hearing to modify the decision of the Decision-maker and the Court substantially upholds the decision of the Decision-maker, the party that requested the de novo hearing must pay the fees and costs of the other party and must pay the fees and costs incurred by the Decision-maker in connection with the request for the hearing, unless the Court finds that it would be manifestly unjust.
As is the case with a Parenting Coordinator, the Decision-maker is appointed for a specific period of time up to two years. Upon agreement of the parties, the Court may extend, modify or terminate the appointment, or allow the Decision-maker to withdraw. The Court determines how the parties will divide the costs of the Parenting Coordinator; the state is not responsible for payment of those fees.
A Decision-maker is immune from liability in any claim for injury that arises out of his or her act or omission during the performance of his or her duties. This does not bar a party from asserting a claim related to the reasonableness or accuracy of any fee charged or time billed by a Decision-maker.
As with the Parenting Coordinator, under the new laws a Decision-maker shall not be competent to testify in official proceedings and may not be required to produce records about events during his or her appointment. However, the parenting coordinator is not prohibited from testifying or producing records to the extent testimony or production of records by the parenting coordinator is necessary in an action by the parenting coordinator to collect fees from a party to the action.
Arbitrator
With the consent of the parties, the Court may appoint an Arbitrator to resolve disputes between the parties concerning the parties’ minor or dependent children, including but not limited to parenting time, nonrecurring adjustments to child support, and disputed parental decisions. An Arbitrator makes all awards in writing and they are effective immediately upon entry and shall continue in effect until vacated or moderated by the Arbitrator, or modified by the Court pursuant to a de novo hearing
A party may apply to have the Arbitrator’s award vacated, modified, or may move the Court to modify the Arbitrator’s award pursuant to a de novo hearing concerning such award by filing a motion for hearing within 30 days. In circumstances in which a party moves for a de novo hearing by the Court, if the Court substantially upholds the decision of the Arbitrator, the party that requested the de novo hearing will be ordered to pay the fees and costs of the other party and the fees of the Arbitrator incurred in responding to the application or motion unless the Court finds that it would be manifestly unjust.
| Child & Family Investigator | Parenting Coordinator | Decision-Maker | Arbitrator | |
|---|---|---|---|---|
| What the advocate does | Investigates, reports and makes recommendations as directed by the Court in domestic relations action. | Assists parties in implementing terms of Parenting Plan. | Resolve disputes between parties regarding implementation or clarification or existing orders concerning minor or dependent children regarding parenting time, decisions, child support and other issues. | Resolves disputes between parties concerning parties’ minor or dependent children. Enters awards in writing. |
| Scope of duties | Investigates, reports and makes written recommendations as directed by the Court. Must take child’s wishes into account, and must disclose those wishes to the Court, but is not required to adopt the wishes in the report. |
Helps resolve disputes between parties concerning parental responsibilities, including but not limited to implementation of the Court-ordered Parenting Plan; helps parties with guidelines for communication; suggests resources to help parties communicate; helps parties identify sources of conflict and develop parenting strategies to limit conflict. | Makes determinations in writing. Has binding authority. The procedures for making determinations must be approved by parties before he or she begins to resolve a dispute. If parties can’t agree, Decision-maker may withdraw from the matter. | Binding authority. |
| How does he or she get appointed? | A neutral third party, may be an attorney, mental health professional or other person with appropriate training, qualified and independent, who is appointed by individual Motion or Court action. | Neutral third party, appointed by Court Order upon motion of either party or by written agreement of the parties. Has appropriate training and qualifications and perspective acceptable to the Court. |
Both parties’ written request required | Both parties must consent, then Court appoints. |
| Who pays for this advocate? | Fees are typically shared by parties pursuant to Court Order. State may pay for an indigent party |
The Court determines how the parties will divide costs; the state is not responsible for payment of fees. | The Court determines how the parties will divide costs; the state is not responsible for payment of fees. | The parties. |
| Length of advocate’s appointment | Determined by Court. | Specific term up to two years, which may be extended by Court Order with agreement of parties | Specific term up to two years, which may be extended by Court Order with agreement of parties | Determined by Court. |
| Other facts | The same person may not serve as both a child’s legal representative and the Investigator. The Investigator may be called to testify as a witness. | May be appointed in addition to a Parenting Coordinator or Arbitrator. The Court may terminate the appointment at any time for good cause, and the Decision-maker may ask to withdraw at any time. |
