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Options in a Colorado Custody Case When You Have Joint Decision Making and Can’t Agree

In Colorado custody law, what used to be called “custody” is now technically called “parental responsibility.” The right to make major decisions for the children used to be called “legal custody.” Legal custody is now generally referred to in Colorado family law circles as “parental responsibility” as relates to the making of major decisons for the children. As with legal custody, there are two options, “sole” or “joint” parental responsibility. Absent domestic violence, mental illness, substance abuse, or distance issues that make joint parental responsibility as to the making of major decisions impractical or improper, it is 90+ percent likely that parties will be awarded joint decision making authority by the court in a divorce or custody case.

Though most people are awarded joint custody, it is not uncommon for our attorneys to see people with great misconceptions as to what the term or legal concept actually means. Joint decision making entails the notion that the two parents have the ability to make major decisions jointly, and in the best interest of the children. Major decisions are things such as school choice, selection of medical providers, whether a child should have braces, and any of the other larger parental decisions that may need to be made. It does not include day to day things like whether the kids should have a hair cut, how a child should be disciplined, what they should eat, or lesser things like that. Those lesser decisions are left to which ever parent is exercising his or her visitation at the time.

Though our legislature envisioned two rational parents jointly agreeing on major issues, such is not always the case. Over the years, we have seen arguments between parties over school choice, whether braces are needed, counseling for the kids, and an array of other issues. With joint decision making, the parties have equal veto power. As such, the question becomes what are people to do when decisions need to be made, but they cannot agree? If one party goes ahead with his or her desired course of action unilaterally, he or she becomes open to being hauled into court for contempt of court proceedings (which can potentially include 180 days in jail). Thus, I strongly advise against taking the unilateral approach.

One might think that if there is a disagreement as to a major decision, the court will ultimately need to decide. There are two problems with this line of thinking. Firstly, major decisions regarding children sometimes need to be made in an expeditious fashion. In some courts, it can take months, or more, from when a motion is filed to when a hearing on the motion actually takes place (largely due to too many cases and too few judges to hear them). The second problem is that C.R.S. 14-10-123, 124, and/or 131 speak of parents having decision making authority, not the courts. Therefore, technically, a court cannot make the decision as to the issue on which the parties disagree. In theory, the court could modify decision making in whole, or in part, to end the stalemate. However, to modify decision making pursuant to C.R.S. 14-10-131, there must generally be a finding of physical or emotional danger to the child. This is a high standard and a threshhold not likely to be met in most situations. If one party doesn’t cave, then both have a problem.

As a side note, we are seeing more and more cases in which people have agreed to 50/50 parenting time when the kids are very young. What happens when the children reach school age and the parties cannot agree on school choice? This is a problem we see more frequently as divorce and custody attorneys in Denver. It is also an unintended consequence of the great push for 50/50 that has gained steam over the last 5 or 6 years. Though statute does not provide a concrete remedy for all situations, it does provide some specific mechanisms for trying to get these types of joint decision making battles resolved. The options include mediation, the appointment of a parenting coordinator, or the appointment of a decision maker.

In many jurisdictions in Colorado, courts will require the parties to attend mediation once a motion is filed. It is also fairly common to see parties in divorce or custody cases agree in their final settlement that they will attend mediation prior to the filing of any motions. A mediator is a neutral third party with training designed to help parties come to agreements or resolve issues. Though mediators have no binding judicial authority, there are many skilled family law mediators who can help people overcome their major decision impasse prior to going to court. What is said in mediation is inadmissible in court and mediators cannot be called to testify.

Another option for resolve parental responsibility battles over major decisions is the utilization of a parenting coordinator (PC). PC’s, like mediators, do not have authority to change orders or enter rulings as to major decisions. PC’s are appointed pursuant to C.R.S. 14-10-128.1, whether by agreement of the parties or order of the court. Like mediators, they cannot be called to testify in court. The primary roles of a PC are to help the parties implement their parenting plan, develope communication mechanisms, and resolve or minimize conflicts. Unlike a mediator, most PC’s are going to be people who also serve as Child and Family Investigators, thus, they have a back ground in child issues stemming from divorce or custody cases.

Only by written agreement of the parties, the court can also appoint a “decision-maker” (DM) pursuant to C.R.S. 14-10-128.3. Unlike the parenting coordinator or the mediator, the DM will actually be vested with the power (essentially like a private judge) to make binding decisions or rulings. The DM’s authority will be limited in scope to that which the parties grant him or her. If the parties agree the DM can only make decisions regarding major issues, that is what the DM is bound to. In some instances, people grant the DM authority to change visitation (which I believe is too much power). Like PC’s, DM’s are generally going to be people with CFI training, or who serve as CFI’s. The potential benefit of using a DM is that you can get those major decision disputes resolved much more rapidly that waiting months for a court to decide. The potential draw backs are that DM’s are private individuals with less legal accountability than a judge. One of my fears for clients in a DM situation is my cynical belief that the process can just become a popularity contest.

Once the DM makes a decision, he or she submits that decision to the court to be made into an order. If a party does not agree with the DM’s decision, he or she has 30 days from the day the decision was made to request a de-novo hearing to modify the decision. Thus, there is some judicial oversight over the DM’s decision or process. However, if the court substantially upholds the DM’s decision, the party requesting the hearing can be liable for the attorney fees of both the other party and the fees for the DM.

Pursuant to statute, PC’s and DM’s are appointed for either a specified period of time, which shall not exceed 2 years. Therefore, if you agree to either and regret that decision, you can take comfort in knowing that 24 months is the longest you may have to deal with him or her. Parties can also agree to the appointment of a hybrid, PC/DM, who can serve both functions at once.

Mediators, parenting coordinators, and decision makers can all be effective tools for getting past disagreements regarding major decisions. Your kids need a
ction in a timely fashion and cannot always wait months for the judicial process to resolve road blocks. It certainly takes every ounce of restraint to not go ahead and make a unilateral decision when your joint parental responsibility as to the making of major decisions is not working. Keep in mind the potential consequences if you do not follow joint decision making orders. How you get past the disagreements regarding major decisions is up to you. Just know that there are tools out there to help you try. If you wait for a court resolution, Billy might miss a whole year of school or Sally might have no teeth left to put those braces on.