Hiring Private Decision Makers & Coordinators in Parenting Matters

Recent changes in Colorado law have created new opportunities for parents in divorce, post-divorce, and custody (allocation of parental responsibility) cases to resolve disputes and implement parenting plans, without Court intervention. The parties may use the services of a parenting coordinator, parenting decision-maker, or arbitrator.

Parenting Coordinator

A parenting coordinator may be appointed by the Court or by agreement of the parties, after an order concerning parental responsibilities has been made. The parenting coordinator is a neutral third party whose job it is to assist in the resolution of disputes between the parties concerning parental responsibilities. The parenting coordinator must be an individual with appropriate training and qualifications who has a perspective acceptable to the court.

If the court appoints a parenting coordinator without agreement of the parties, the court must also make the following findings:

  1. That the parties have failed to adequately implement the parenting plan;
  2. That mediation has been determined by the court to be inappropriate, or, if not inappropriate, that mediation has been attempted and was unsuccessful; and
  3. That the appointment of a parenting coordinator is in the best interests of the child or children involved in the parenting plan.

In addition to making the findings noted above, prior to appointing a parenting coordinator, the court must consider the effect of any documented evidence of domestic violence on the parties’ ability to engage in parent coordination.

A parenting coordinator shall assist the parties in implementing the terms of the parenting plan. Duties of a parenting coordinator include, but are not limited to, the following:

  1. Assisting the parties in creating an agreed-upon, structured guideline for implementation of the parenting plan;
  2. Developing guidelines for communication between the parties and suggesting appropriate resources to assist the parties in learning appropriate communication skills;
  3. Informing the parties about appropriate resources to assist them in developing improved parenting skills;
  4. 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
  5. Assisting the parties in developing parenting strategies to minimize conflict.

The parenting coordinator cannot be the same person who served as an evaluator or child representative but may, if the parties agree, be the same person who has served as a child and family investigator (formerly referred to as a “special advocate”).

A court order appointing a parenting coordinator must be for a specified term of no longer than two years. If an order fails to specify the length of the court ordered appointment, it will be construed to be two years from the date of appointment. Upon agreement of the parties, the court may extend, modify, or terminate the appointment, including extending the appointment beyond two years from the date of the original appointment. The court may terminate the appointment of the parenting coordinator at any time for good cause. The parenting coordinator may withdraw at any time.

A court order appointing a parenting coordinator must include apportionment of the parenting coordinator’s fees between the parties. The state will not be responsible for payment of fees to a parenting coordinator.

In a judicial proceeding, administrative proceeding or other similar proceeding between the parties to the action, a parenting coordinator cannot testify and cannot be required to produce records as to any statement, conduct or decision that occurred during the parenting coordinator’s appointment, just as judges in Colorado cannot testify to such matters in cases in which they have acted in a judicial capacity. However, the parenting coordinator can produce records and testify as needed to collect fees from a party to the action.

Domestic Relations Decision-Makers

In addition to the appointment of a parenting coordinator or an arbitrator, at any time after the entry of an order concerning parental responsibilities and upon written consent of both parties, the court may appoint a qualified “domestic relations decision-maker.” The Court may grant the decision-maker binding authority to resolve disputes between the parties as to implementation or clarification of existing orders concerning the parties’ minor or dependent children, including, but not limited to, disputes concerning parenting time, specific disputed parental decisions and child support. A decision-maker must have the authority to make binding determinations to implement or clarify the provisions of a pre existing court order in a manner that is consistent with the substantive intent of the court order. The decision-maker appointed pursuant to the provisions of this section may be the same person as the parenting coordinator.

The decision-maker’s procedures for making determinations must be in writing and must be approved by the parties prior to the time the decision-maker begins to resolve a dispute. If a party is unable or unwilling to agree to the decision-maker’s procedures, the decision-maker can withdraw from the matter.

All decisions made by the decision-maker pursuant to this section must be in writing, dated and signed by the decision-maker. Such decisions must be filed with the court and mailed to the parties or to counsel for the parties, if any, no later than twenty days after the date the decision is issued. All decisions are effective immediately upon issuance and continue in effect until vacated, corrected or modified by the decision-maker or until an order is entered by a court pursuant to a de novo hearing.

A party may file a motion with the court requesting that a decision of the decision-maker be modified by the court pursuant to a de novo hearing. A motion for a de novo hearing must be filed no later than thirty days after the date the decision is issued.

If a court in its discretion, based on the pleadings filed, grants a party’s request for a de novo hearing and substantially upholds the decision of the decision-maker, the party that requested the de novohearing must pay the fees and costs of the other party and the fees and costs incurred by the decision-maker in connection with the request for de novo hearing, unless the court finds that such a requirement would be manifestly unjust.

A court order appointing a decision-maker must be for a specified term of no longer than two years. If an order fails to specify the length of the court ordered appointment, it will be construed to be two years from the date of appointment. Upon agreement of the parties, the court may extend, modify or terminate the appointment, including extending the appointment beyond two years from the date of the original appointment. The court may terminate the appointment of the decision-maker at any time for good cause. The decision-maker may withdraw at any time.

A court order appointing a decision-maker must include apportionment of the decision-maker’s fees between the parties. The state will not be responsible for payment of fees to a decision-maker.

A decision-maker is immune from liability in any claim for injury that arises out of an act or omission of the decision-maker occurring during the performance of his or her duties or during the performance of an act that the decision-maker reasonably believed was within the scope of his or her duties, unless the act or omission causing such injury was willful and wanton.

In a judicial proceeding, administrative proceeding or other similar proceeding, a decision-maker cannot testify and cannot be required to produce records as to any statement, conduct or decision that occurred during the decision-maker’s appointment, just as judges in Colorado cannot testify to such matters in cases in which they have acted in a judicial capacity. However, a decision-maker can testify and produce records in the following circumstances:

  1. To the extent testimony or production of records by the decision-maker is necessary to determine the claim of the decision-maker against a party; or
  2. To the extent testimony or production of records by the decision- maker is necessary to determine a claim of a party against a decision-maker; or
  3. When both parties have agreed, in writing, to authorize the decision-maker to testify.

If a person commences a civil action against a decision-maker arising from the services of the decision-maker or if a person seeks to compel a decision-maker to testify or produce records in violation of Colorado law and the court decides that the decision-maker is immune from civil liability or that the decision-maker is not competent to testify, the court will award to the decision-maker reasonable attorney fees and reasonable expenses of litigation.

Arbitrator

With the consent of all 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. Notwithstanding any other provision of law to the contrary, all awards entered by an arbitrator must be in writing. The arbitrator’s award is effective immediately upon entry and continues in effect until vacated by the arbitrator, modified or corrected by the arbitrator as provided by law, or modified by the court pursuant to a de novo hearing.

Any party may apply to have the arbitrator’s award vacated, modified, or corrected for the limited reasons allowed by law. Also, one of the parties 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 no later than thirty days after the date of the award.

In circumstances in which a party moves for a de novo hearing by the court, if the court in its discretion, based on the pleadings filed, grants the motion and substantially upholds the decision of the arbitrator, the party that requested the de novo hearing must be ordered to pay the fees and costs of the other party and of the arbitrator incurred in responding to the application or motion, unless the court finds that such a requirement would be manifestly unjust.

Conclusion

Court dockets are backlogged, and compliance with court procedures can be time consuming and expensive. Judges may be moved from a domestic relations docket to a different docket, resulting in one judge deciding permanent orders, another judge deciding one parenting modification, and a different judge deciding additional modification issues. Using private dispute resolution methods may save the parties time and money and allow for consistency with decision-makers who have a chance to know the parties and the children.

Gregg A. Greenstein is a shareholder in the law firm of Frascona, Joiner, Goodman and Greenstein, P.C., a Colorado law firm. His practice areas include Real Estate, Litigation, Family Law, Divorce, and Adoption. Contact Gregg Greenstein.

Disclaimer -- Content is general information only. Information is not provided as advice for a specific matter, nor does its publication create an attorney-client relationship. Laws vary from one state to another. For legal advice on a specific matter, consult an attorney.

GREGG A. GREENSTEIN