Robbins: The role of parenting coordinators and others in divorce cases
They don’t necessarily have to be, but divorce and parenting issues are often high-conflict affairs. Emotion, understandably, runs high and rational decision-making is too frequently the first casualty on the battlefield where love lost and law collide.
To ease the tension just a mite, and to interject a little neutral third-party reason into matters, the law provides several means and mechanisms by which the escalating brouhaha may be kept from otherwise spiraling out of control.
Meet the parenting coordinator, the domestic relations decision-maker and the statutoryaArbitrator, all of whom are invested in bestowing a measure of tranquility in disputes between the divorced parents of minor children.
A parenting coordinator (referred to by lawyers as a “PC”) can be appointed, upon request, at any time following the entry of an order regarding parental responsibilities. Very loosely speaking, “parental responsibilities” means what most people think of as “custody” issues. A parenting coordinator may be appointed upon the request of either one or the other party, by agreement between the parties, or on the initiative of the court itself.
A parenting coordinator’s duties include assisting the parties in creating guidelines for implementing the parenting plan, facilitating communication between the parties, helping the parents develop their parenting and communications skills, helping the parties identify the sources of conflict between them, and assisting the parties in developing strategies to minimize conflict between them. Most often, the parenting coordinator enjoys a continuing relationship with the parties and, as the need arises, helps see them through rough patches in parenting following divorce.
Unless stated otherwise, when the court appoints a parenting coordinator, the term of appointment is presumed to be two years. The parties can agree, or the court will determine how the coordinator’s fees will be shared. The state is not responsible for the fees. Except in unusual circumstances, the parenting coordinator cannot be called to testify in disputes between the parties nor can he or she be compelled to produce records of his or her interactions with them.
A firmer hand
Sometimes, higher-conflict cases require even greater intervention and a firmer hand. That role may be played by the domestic relations decision-maker (referred to as a “DM”) who is invested by law with binding authority to settle disputes between the parties. Where a parenting coordinator guides the parties towards a resolution of their disputes, the decision-maker makes decisions for them.
The kinds of decisions made may include disputes concerning parenting time, specific disputed parental decisions and child support. A decision-maker may only be appointed with the written consent of both parties and the written agreement between the parties lays out the scope of the decision-maker’s duties. The decisions must be consistent with the prior orders of the court regarding parenting responsibilities.
If one of the parties disagrees with a decision made by the decision-maker, a means exists by which that party may appeal directly to the court to modify the decision-maker’s decision. Like the parenting coordinator, the decision-maker is not competent to testify in disputes between the parties. Importantly, too, the decision-maker is immune from liability for any claim of injury arising as a consequence of his/her decisions.
Another type of domestic relations facilitator is known as Section 14-10-128.5 arbitrator (which, for convenience, I’ll refer to as a “statutory arbitrator” since the position is one created by statutory law). The statutory arbitrator exists for the purpose of establishing a more formal procedure for resolving disputes between the divorced parties where they cannot agree on issues pertaining to the parenting of their minor children.
Unlike the decision-maker, the statutory arbitrator has the authority to modify the substantive rights of the parties. Because the parenting rights can be changed or modified, greater due process must be afforded and, instead of simply deciding an issue, the parties must each be given a fair opportunity to present their case to the arbitrator. Once the parties present their respective cases, the arbitrator renders his or her decision.
Similarly to the decision-maker, a statutory arbitrator may only be appointed with mutual consent of the parties. Typical of the kinds of decisions the arbitrator may make are those relating to parenting time, nonrecurring adjustments of child support, and disputed parental decisions. It is essential that the agreement between the parties to employ a statutory arbitrator clearly sets forth the scope of the arbitrator’s duties. Determinations of the statutory arbitrator may be appealed directly to the court who may or may not accept the matter for its consideration.
All three devices — the parenting coordinator, the domestic relations decision-maker, and the Section 14-10-128.5 arbitrator — are intended to facilitate high-conflict divorces involving minor children and to forebear imposing excessive authority over the parties absent their consent. In so doing, it is hoped that more individualized attention can be provided in these matters, that the attention given will be swifter, that the courts will be relieved of at least some of the burden following a divorce and, most of all, that a palpable benefit will accrue to the children of divorce.
All of the foregoing notwithstanding, if possible, it is almost always best for the parties to make their own calls and to try to smooth out whatever rough patches they may encounter between themselves perhaps with the assistance of their attorneys. As a PC/DM once asked of me in exasperation, “Why do these people want me to decide these important things for them? Wouldn’t it help the healing if they could work them out themselves?”
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, firstname.lastname@example.org.