Parenting Coordinator: Understanding This New Role

by Beth Henson

This column is sponsored by the CBA Family Law Section to provide This article discusses the creation of the roles of parenting information to family law practitio- coordinators, domestic relations decision-makers, and CRS ners. Articles are intended to focus § 14-10-128.5 arbitrators, and provides a brief overview of on practice tips and discussions of parenting coordination legislation in other states. current issues within the realm of family law. New column authors are welcomed. or years, many Colorado courts parenting coordinator is defined as a have appointed parenting coordi- neutral third party who assists in the Fnators in family law cases. Until resolution of disputes between the par- 2005, there was no statute that estab- ties concerning parental responsibilities, lished or defined the role of a parenting including but not limited to implemen- coordinator, and the result was a lack of tation of court-ordered parenting plans. uniformity and agreement as to what The parenting coordinator must be an such role entailed. However, House Bill individual with appropriate training 05-1171 (“H.B. 1171”), which was signed and qualifications, and must have a per- into law by Governor Owens in June spective acceptable to the court.2 This 2005, provides a framework for profes- description is intentionally vague, in sional intervention in family law cases recognition of the fact that there are dif- that includes parenting coordinators, do- fering levels of resources for parenting mestic relations decision-makers (“deci- coordinators in different parts of the sion-makers”), and arbitrators. state. This language allows courts dis- The driving goal behind H.B. 1171 cretion in choosing a parenting coordi- Column Editors: was a desire to provide resources for in- nator. Gretchen Aultman, Denver,of Burns, tervention and assistance to parties in Wall, Smith & Mueller,P.C.—(303) high-conflict cases. Thus, the hope is that Appointing a 830-7000, [email protected]; such parties will not be forced to resort Parenting Coordinator Marie Avery Moses, Greenwood to formal court proceedings to resolve A parenting coordinator can be ap- Village, of Cook, Cooper & Moses, every single dispute or disagreement pointed at any time after the entry of an that arises. H.B. 1171 is structured in order regarding parental responsibilities LLC—(303) 623-1130, marmoses@ such a way as to provide three levels of by agreement of the parties, on the re- msn.com intervention in a high-conflict case, from quest of one party, or by the court on its the lowest level of intervention to the own motion.3 However, in the absence of highest. This allows an individualized an agreement by the parties, to appoint About The Author: approach to each case. a parenting coordinator the court must This month’s article was written by This article discusses the roles and make findings that the parties have Beth Henson, an attorney whose prac- qualifications of parenting coordinators, failed to adequately implement their tice is limited to family law dispute decision-makers, and CRS § 14-10-128.5 parenting plan and that mediation is in- arbitrators. It also provides a brief appropriate or has been unsuccessful. resolution—(303) 346-3700. The au- overview of parenting coordination leg- The court must consider the effect of any thor wishes to give special thanks to islation in other states. documented evidence of domestic vio- Barbara Ann Bartlett, J.D., Tulsa, Ok- lence on the parties’ ability to engage in lahoma, for her kindness in allowing Parenting Coordinator parenting coordination.4 The question use of her excellent summary of par- The first level of intervention is set has been raised as to whether a parent- enting coordination programs for this forth in CRS § 14-10-128.1, which cre- ing coordinator can be appointed at per- article. ates the “parenting coordinator.” 1 The manent orders if there is an existing

The Colorado Lawyer / February 2006 / Vol. 35, No. 2 / 31 32 Family Law February temporary order concerning the allocation pointment. The court may terminate the parties and after entry of an order regard- of parental rights and responsibilities. The parenting coordinator’s appointment for ing responsibilities.16 The written agree- statute is silent on this issue, but the ar- good cause at any time, and the parenting ment between the parties and the deci- gument in favor of appointing a parenting coordinator can withdraw at any time.11 sion-maker should set forth the scope of coordinator at permanent orders seem- The court order of appointment shall al- the decision-maker’s duties. ingly could be made. locate responsibility for the parenting coordinator’s fees between the parties. The Role of Decision-Maker Duties of parties can agree to each party’s responsi- It is extremely important that family Parenting Coordinator bility for fees, or the court can enter its law practitioners understand that the de- The duties of the parenting coordinator own order as to how such fees will be cision-maker’s role is to make decisions are noted in the new statute. Such duties shared. The state is not responsible for for the parties in implementing the par- include, but are not limited to: (1) assist- payment of the parenting coordinator’s enting plan that already exists. The deci- ing the parties in creating agreed-upon, fees.12 sion-maker is not to make any binding de- structured guidelines for implementing In a judicial, administrative, or other cisions that modify the substantive order their parenting plan; (2) developing guide- similar proceeding between the parties, a that already exists or that change the sub- lines for communication between the par- parenting coordinator shall not be compe- stantive rights the parties have under the ties; (3) suggesting resources for the par- tent to testify and may not be required to existing court order.A more formal proce- ties in learning communication skills; (4) produce records as to his or her interac- dure exists for any process that modifies informing the parties of resources for de- tions with the parties to the same extent the parties’ rights (Such procedure is dis- veloping improved parenting skills; (5) as- as a judge acting in a judicial capacity.13 cussed in the next section entitled “CRS sisting the parties in identifying the However, this does not prevent the par- § 14-10-128.5 Arbitrator.”). Use of a deci- sources and causes of conflict between enting coordinator from testifying or pro- sion-maker can be valuable in obtaining them; and (6) assisting the parties in de- ducing records as needed in an action by the speedy resolution of minor disputes, so veloping parenting strategies to minimize the parenting coordinator to collect fees the parties and their children can move conflict.5 from a party.14 forward instead of becoming mired in fur- There are certain restrictions on the The parenting coordinator must comply ther court proceedings. appointment of parenting coordinators. with any applicable provisions of the Colo- An example of a situation in which a de- For example, a person cannot be appoint- rado Supreme Court Chief Justice Direc- cision-maker would get involved is as fol- ed as a parenting coordinator in a case if tives, as well as with any other practice or lows: the parties’ parenting plan states the same person served as an evaluator6 ethical standards that regulate the par- that the children will be with Mother on or a legal representative of the child7 in enting coordinator.15 In other words, if the Christmas Eve and with Father on Christ- the same case. Conversely, once a person parenting coordinator is an attorney,he or mas Day. However, the parenting plan is has acted as a parenting coordinator in a she must abide by the Colorado Rules of silent as to the exchange times and the case, he or she cannot subsequently be ap- Professional Conduct. If the parenting co- parties cannot agree. The decision-maker pointed as an evaluator or representative ordinator is a mental health professional, can make a binding decision as to the ex- of the child in the same case.8 he or she must abide by the applicable change time, as long as Mother still has If a person has served as a special ad- professional standards. the children on Christmas Eve and Father vocate or a child and family investigator still has them on Christmas Day. The de- in a case,9 such person can serve as a par- cision-maker could not decide that the enting coordinator only on agreement of Domestic Relations children will spend Christmas Eve and the parties. However, if a person serves as Decision-Maker Christmas Day with Mother, because this a parenting coordinator in a case, such Although a parenting coordinator can decision would alter Father’s substantive person cannot serve as a special advocate be very useful, some high-conflict cases re- right to spend Christmas Day with the in the same case.10 This is important be- quire more intervention and a firmer children. cause the parenting coordinator has an hand than that of a parenting coordinator. A decision-maker can be the same per- ongoing relationship with the parties. The newly created CRS § 14-10-128.3 de- son as the parenting coordinator.17 When When a special advocate is appointed to a scribes the role of the domestic relations a decision-maker is appointed by agree- case, it is preferred that he or she begin decision-maker. ment of the parties, the parties should with a fresh perspective, without having The decision-maker is an individual consider whether such person also should viewed the day-to-day conflicts and inter- who is given binding authority to resolve fulfill the educational and facilitative role actions of the parties that a parenting co- disputes between the parties as to the im- of the parenting coordinator. A decision- ordinator likely will see. plementation or clarification of existing maker can be appointed by agreement of orders regarding the parties’ children, in- the parties even if they have an arbitrator Terms, Fees, and Testimony cluding but not limited to: (1) disputes appointed under CRS § 14-10-128.5.18 When a court appoints a parenting co- concerning parenting time; (2) specific dis- ordinator, the order of appointment puted parental decisions; and (3) child Decision-Maker Procedures should specify a term of appointment, as support. The implementation and clarifi- Section (2) of CRS § 14-10-128.3 pro- long as such term is not longer than two cation of the pre-existing court order by vides that the decision-maker’s proce- years. If the order of appointment is silent the decision-maker must be consistent dures for making decisions must be in as to the term, the term is construed to be with the substantive intent of the court writing and approved by the parties. If a two years. If the parties agree, the court order.The decision-maker can be appoint- party is unable or unwilling to agree to can extend, modify, or terminate the ap- ed only with the written consent of both the decision-maker’s procedures, the deci-

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34 Family Law February sion-maker may withdraw.19 This critical who is appointing a decision-maker re- Knowitall can withdraw from the case provision was included to assure that the view the agreement between the parties and the parties can find someone who can expectations regarding the decision-mak- and the decision-maker before it is signed better meet their needs. er’s role and procedures were the same be- by his or her client. The written decisions made by the de- tween the parties and the decision-maker The requirement for defined procedures cision-maker must be dated and signed. in advance of any action being taken by also benefits the decision-maker. As stat- Such decisions shall be filed with the the decision-maker. It allows the parties ed above, parent coordinators were ap- court and mailed to parties or counsel to craft an agreement with the decision- pointed routinely even prior to the enact- within twenty days of issuance.20 A party maker that sets forth exactly what au- ment of H.B. 1171, and it was not uncom- may file a motion with the court asking thority the decision-maker has and how mon for parties to agree to appoint a for a de novo hearing to modify the deci- decisions will be made. parent coordinator without having con- sion-maker’s decision within thirty days For example, the written procedures tacted the parent coordinator in advance. of the issuance of the decision.21 The court can state that the decision-maker has au- Decision-makers likely will be appointed has discretion to grant or deny the re- thority over disputed education issues, by the parties without the parties having quest for the de novo hearing. If a de novo but not over disputed medical or religious talked to the decision-maker or having re- hearing is held and the court substantial- decisions. The written agreement also can viewed procedures in advance. Under this ly upholds the decision of the decision- specify, among other things, whether the provision, if the parties’ expectations or maker, the party that requested the de no- decision-maker can have ex parte contact needs conflict with the decision-maker’s vo hearing must pay the fees and costs of with the parties, whether the decision- chosen procedures, the decision-maker the other party, as well as those incurred maker is expected to contact collateral cannot be forced to remain on the case by the decision-maker, if any, unless such sources at the request of the parties, and and can withdraw. result would be manifestly unjust.22 how the decision-maker requires disputes For example, the parties agree to ap- The decision-maker is granted certain to be presented. point Dr. Knowitall as their decision-mak- levels of immunity. He or she is immune Parties have a serious responsibility to er. However, when the parties discuss pro- from liability for any claim for injury aris- create a decision-making process that cedures with Dr. Knowitall, they find that ing out of an act or omission occurring works for their needs and expectations, they need someone who is willing to visit during the performance of his or her du- and the importance of the written proce- and observe the children in school, and Dr. ties or during performance of an act that dures cannot be over-emphasized. It is Knowitall has a strict practice of not dis- he or she reasonably believed was within very important that counsel for a party rupting a child’s school environment. Dr. the scope of his or her duties. Such immu-

34 / The Colorado Lawyer / February 2006 / Vol. 35, No. 2 2006 Family Law 35 nity does not apply if the act or omission Before H.B. 1171 was enacted, parties conflict case. However, in Oklahoma but was willful and wanton.23 However, it is had the right to request a “de novo re- not Colorado, the parenting coordinator important to note that this immunity does view,” but there was no consensus as to appointed without consent of the parties is not shield a decision-maker from a claim what type of review was required.29 H.B. authorized by statute to make certain regarding the reasonableness or accuracy 1171 now refers to a “de novo hearing,” binding decisions on the parties, as long as of his or her fees.24 which can be granted or denied at the dis- the decisions are only minor departures Like a parenting coordinator, in a judi- cretion of the court. H.B. 1171 also added from the parenting plan. Oklahoma also cial, administrative, or other similar pro- a deadline of thirty days by which a party was the first state to face a constitutional ceeding, a decision-maker is not compe- must file a request for a de novo hearing. challenge to its parent coordinator legisla- tent to testify and may not be required to Similar to a de novo hearing on a decision- tion. The statute passed an equal protec- produce records to the same extent as a maker’s decision, if after a de novo hear- tion challenge, as well as substantive and judge acting in a judicial capacity.Howev- ing the court substantially upholds the ar- procedural due process tests.31 er, there are certain exceptions to this pro- bitrator’s decision, the party that request- Other states that have parenting coor- vision. This provision does not apply: (1) if ed the de novo hearing shall pay the fees dination statutes include Idaho and Ore- testimony or documents are needed to de- and costs of the other party, as well as gon; Texas and North Carolina passed termine a claim by the decision-maker those incurred by the arbitrator, if any,un- parent coordination legislation in 2005. In against a party; (2) if testimony or docu- less such result would be manifestly un- addition, other states have statutory roles ments are needed to determine a claim by just.30 that are similar to parenting coordinators, a party against the decision-maker; and although they do not use the same termi- (3) when both parties have agreed in writ- Other States nology. Minnesota has a program where ing to allow the decision-maker to testify.25 Colorado joins a handful of states that “expeditors” are appointed to arbitrate The decision-maker must comply with have parenting coordination legislation. parenting plans. Arizona has “family court any applicable provisions of the Chief Jus- Oklahoma was the first state to approve advisors” to monitor compliance with cus- tice Directives, as well as any other prac- such legislation; it passed the Parenting tody and visitation orders. California cre- tice or ethical standards that regulate the Coordinator Act in 2001 and amended it in ates “special masters” and “referees” to act decision-maker.26 2003. In Oklahoma and Colorado, a par- in the role of parenting coordinators. enting coordinator can be appointed with- These professionals can hear and deter- CRS § 14-10-128.5 out the consent of the parties in a high- mine any or all issues on agreement of the Arbitrator Arbitration of child-related issues as de- scribed in CRS § 14-10-128.5 existed pri- or to the enactment of H.B. 1171, but important clarifications have been made to the statute. As was previously set forth in CRS § 14-10-128.5, with the consent of the parties, the court may appoint an arbitrator to resolve disputes concerning the parties’ children. These disputes include, but are not limited to, parenting time, nonre- curring adjustments to child support, and disputed parental decisions.27 Authority of Arbitrator There are several references to the Uni- form Arbitration Act28 in CRS § 14-10- 128.5. Many dispute resolution professionals believe that these references im- ply that the CRS § 14-10-128.5 arbitrator is to comply with the Uniform Arbitration Act. Arbitration under CRS § 14-10-128.5 is intended to be a more formal procedure than that to which the decision-maker is required to adhere. This formal procedure is intended to provide more due process than is provided by a decision-maker, because the arbitrator generally has the authority to modify the substantive rights of the parties. Like the decision-maker, the written agreement between the parties and the arbitrator is vitally important in setting forth the arbitrator’s authority and limitations.

The Colorado Lawyer / February 2006 / Vol. 35, No. 2 / 35 36 Family Law February parties. If the parties do not agree, a refer- diate attention than the courts can pro- There also is a question of whether the phrase ee can be appointed for the limited pur- vide, to the benefit of the children. “may not be required to produce records” im- poses of determining questions of fact or plies the converse—that the parenting coordi- gathering information. Ohio and Wiscon- NOTES nator can choose to do so. sin use their arbitration statutes to facili- 14. CRS § 14-10-128.1(7). 15. CRS § 14-10-128.1(8). tate parenting coordination.32 1. CRS § 14-10-128.1. 2. Id. 16. CRS § 14-10-128.3(1). 3. Id. 17. Id. Conclusion 4. CRS § 14-10-128.1(2). 18. Id. The intent of H.B. 1171 was to provide 5. CRS § 14-10-128.1(3). 19. CRS § 14-10-128.3(2). needed resources for high-conflict cases 6. CRS § 14-10-127. 20. CRS § 14-10-128.3(3). 21. CRS § 14-10-128.3(4)(a). The statute is without imposing excessive authority over 7. CRS § 14-10-116. 8. CRS § 14-10-128.1(4)(a). not clear as to whether the date of “issuance” is the parties without their consent. The 9. House Bill 05-1171 (“H.B. 1171”), which the date the decision is made or the date it is lowest level of intervention, parenting co- was signed by Governor Owens in June 2005, signed. ordinators, can be appointed without the changes the name of the “special advocate” to 22. CRS § 14-10-128.3(4)(b). consent of the parties, but parenting coor- “child and family investigator.” The role re- 23. CRS § 14-10-128.3(7)(a). dinators have no binding authority over mains essentially the same. However, because 24. CRS § 14-10-128.3(7)(b). the parties. Their role is to try to facilitate H.B. 1171 refers to “special advocates,” that 25. CRS § 14-10-128.3(c). more cooperative parenting. The next two term is used in this article. 26. CRS § 114-10-128.5(8). levels, decision-makers and CRS § 14-10- 10. CRS § 14-10-128.1(4)(b). 27. CRS § 114-10-128.5(1). 128.5 arbitrators, have authority to make 11. CRS § 14-10-128.1(5). 28. CRS §§ 13-22-201 et seq. 29. CRS § 14-10-128.5. certain decisions as provided by statute, 12. CRS § 14-10-128.1(6). 13. CRS § 14-10-128.1(7). Although it seems 30. CRS § 114-10-128.5(2). but must be given this authority by the clear that a parenting coordinator cannot be 31. Barnes v. Barnes, 107 P.3d 560 (Okla. parties. The hope is that appointment of a called into court to testify,it is not clear wheth- 2005). parenting coordinator, decision-maker, er the parenting coordinator can be contacted 32. Bartlett, “Summary of the States with and/or CRS § 14-10-128.5 arbitrator will as a collateral source in an investigation being Parenting Coordinator Legislation,” in prog- give cases more individualized and imme- conducted by a special advocate or evaluator. ress. n v

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