Early Neutral Evaluation comes to Denver!

Family law cases are complicated, and they are often better resolved if the parties can reach an agreement outside of the courtroom.  Alternate Dispute Resolution allows parties to craft more personalized and flexible solutions that are tailored to the circumstances facing their families.  Usually, ADR in family law cases takes the form of mediation, in which a neutral third-party helps the parties to discuss and reach agreement on their issues.

The Colorado Dispute Resolution Act also provides for Early Neutral Evaluation (ENE) as an ADR mechanism.  C.R.S. §13-22-302(2).  The idea behind ENE is to involve a court-appointed evaluator early in the process to assist the parties in case management by identifying, simplifying, and eliminating some issues when possible.  Essentially, the evaluator listens to the parties’ positions and offers feedback on the likely outcome of the issue in front of the court.  This is different from mediation because the purpose of the ENE meeting is not necessarily to get either side to compromise; rather, the goal is to provide the parties with realistic feedback about their changes in court.

In May of this year, Denver County announced that it has initiated an Early Neutral Assessment pilot project allowing parties to opt in to the project.  The project will cost $400 per party (though the Office of the Child Representative has agreed to fund ENA for indigent parties).  If parties opt in to the program, they will work with a two-person team consisting of a mental health professional and a retired judge.

The biggest advantage of ENE in family law cases seems to be the ability to get feedback regarding potential outcomes earlier in the process than would otherwise be typical.  I will be very curious to see how this process works throughout Colorado and hope that it can help parties move through the process more quickly and inexpensively.

Posted in Alternate Dispute Resolution, Best interests of the child

A unanimous decision from the supreme court today!

In 2010, I accepted a case through the Colorado Pro Bono Appellate Program to represent a client in her efforts to get the Colorado supreme court to grant certiorari on her custody case.  I filed the petition for writ of certiorari in October 2010, and after both an answer and a reply were filed, the court granted certiorari.  I filed an opening brief in August 2011, and we had oral argument on March 7, 2012.  You can listen to the oral arguments on the supreme court’s website.

Today, almost two years after getting involved in the case, we received a unanimous decision from the supreme court in my client’s favor.  Because the case involves custody of a minor child, it is called In the Interest of Child: B.B.O.  This case considered whether a parent must consent to a nonparent caring for a child before a nonparent may establish standing to petition for an allocation of parental responsibilities (custody) under Colorado law.  In a concise, en banc opinion, the supreme court concludes that the plain language of the statute does not require consent and that a biological parent’s fundamental liberty interest in the care, custody, and control of a child does not require consent to be read into the statute.

This case will have important implications for psychological parents throughout Colorado and reaffirms the important role that psychological parents play in the lives of children.  By requiring parental consent to nonparent standing, the court of appeals effectively precluded a large class of nonparents from having a place at the table in deciding what is in the best interests of children.  Although the supreme court’s decision does not comment on the merits of the case (because that issue was not before the supreme court), it removes that impediment and makes it easier for nonparents to be part of the discussion of what is in children’s best interests.

On an interesting side-note, this also provides a bit of insight into how long an appeal can take.  Children’s cases are generally expedited, meaning they are supposed to work through the system more quickly than other appeals.  Even with that in mind, just the supreme court appellate process took approximately 21 months.  As noted in the opinion, this case started when the minor child’s father died in 2008, approximately four years ago.

The Colorado supreme court has done citizens of Colorado a great service by establishing the pro bono appellate program, which will hopefully allow more individuals to have their cases appealed.  The court has also tried diligently in recent years to move cases through the system more quickly and efficiently.  Even with those efforts, clients looking to appeal a case must be prepared to wait for relief.

For Ellis Wright & Ewegen, this case is also important as we work to build our appellate practice.  I have always loved appellate law, which is one reason I became involved in the pro bono appellate program.  Although this was my first case before the supreme court, it was by no means my first appeal, and I look forward to working on many more.  Appellate law is an interesting challenge because the decisions we ultimately receive affect so many more people than our individual clients.  The precedents established have far-reaching implications, and practicing appellate law allows attorneys to help shape and define the law in ways that trial practice do not.

Posted in Appellate Law, Psychological parents

Pro se opposing parties: making family law even more challenging

Practicing family law is always a fun balancing act, but adding it becomes even more challenging when the opposing party is not represented by an attorney.  For starters, it puts the attorney representing the other party in the precarious position of having to explain the law to someone without offering any legal advice.  If I refuse to explain how the system works or what the law is to the other party, the process becomes even slower than usual because we have to wait for that person to either figure it out without help or for the family court facilitator, magistrate, or judge to explain things.  This is not ideal.  On the other hand, anytime I find myself explaining the process, I am faced with inevitable questions about what the other party “should” do, which I obviously cannot answer.

Then, inevitably there is some sort of disagreement between the parties that would normally result in me sending a firm letter to opposing counsel explaining my client’s position and demanding some sort of assurances or actions by the other side.  I am always cautious about drafting those letters anyway, since I prefer not to practice like an aggressive bulldog (no disrespect meant for those loveable canines), and I find myself even more cautious when the opposing party is not represented by an attorney.  Of course, as attorneys, we always worry about being grieved, but my primary concern about the correspondence I send pro se parties has more to do with wanting people to come away with as favorable impression of the legal system as possible.

I know that few people walk away from a family law case feeling truly happy about the process, but it is always my hope that at least they leave feeling as though they had their day in court and that the process was fundamentally fair.  The last thing I want is for some unrepresented party to think I am being a bully or that the system is stacked in favor of the party with an attorney.  This is especially true in the family law arena, where I have generally found the system to be very respectful of pro se parties.  Colorado has an extensive set of family law forms for pro se parties to utilize, and the family court facilitators, magistrates, and judges seem very focused on helping pro se parties through the system.

Despite all this, I still often find myself very frustrated when the other party in a family law case is pro se.  As much as other family law practitioners can occasionally be difficult, I would still rather have opposing counsel than an unrepresented opposing party.

Posted in Divorce, Practice of Law

Today in History: May 18

Although not every day has interesting historical connotations for family law, May 18 marks the 78th anniversary of the first federal law criminalizing kidnapping.  Congress passed the statute in 1934 in the aftermath of the kidnapping and murder of Charles Lindbergh’s son.  Because of that, the statute was popularly referred to as the Lindbergh Law.

The Lindbergh case is also interesting because the trial and eventual conviction of the man suspected of kidnapping the Lindberghs’ baby provide one of the earliest examples of the conflict between due process and freedom of the press.  Heavy media involvement in the search for and apprehension of the man ultimately convicted was intense and caused many to question the validity of the result.

Posted in Today in History

Retroactive Modification of Child Support

As I’ve discussed in several previous posts, child support in Colorado cannot be modified retroactive past the date a motion to modify is filed unless there has been a mutual agreement regarding change of custody of the minor child. The Colorado court of appeals clarified on Thursday, May 10, 2012 that such an agreement does not have to be in writing.  Judge Taubman authored the opinion in In re the Marriage of Paige, 11CA0893 (2012), which reached this decision by looking at the fact that the statute does not expressly require that the agreement be in writing and considering the fact that many other sections of the statute do specify that agreements must be in writing.  The court also affirmed the need to have a hearing when there is a factual dispute regarding whether there was a mutual agreement changing parenting time.

Posted in Case Note, Child Support

Equitable Estoppel and Child Support

Colorado case law clearly supports the idea that child support is the right of the child, not the parent.  In re Marr. of Aldrich, 945 P.2d 1370, 1376 (Colo. 1997).  This is one of the reasons that stipulations regarding child support have to be reviewed and approved by the court with an eye toward a child’s best interest.  Further, Colorado statutory law and the cases interpreting it make clear that court-ordered child support payments automatically become money judgments when they are due and not paid, and courts generally cannot retroactively modify child support prior to the date of a mutually-agreed-upon change in physical custody or the filing of a motion to modify child support.  C.R.S. section 14-10-122(1)(d).

Colorado cases have carved out a narrow exception to these rules, however, to apply the doctrine of equitable estoppel.  To claim equitable estoppel, however, a party “must demonstrate both reasonable and detrimental reliance on the other party’s acts or representations and a lack of knowledge or convenient means of knowing the facts.”  In re Marr. of Turner, 11CA0205 (Colo. App. April 26, 2012).  “Accrued child support arrearages will be abated only under extremely limited circumstances, such as concealment of the child or uncompleted adoption proceedings.”  In re Marr. of Turner, 11CA0205 (Colo. App. April 26, 2012).

Limiting the application of equitable estoppel in child support cases is essential to support the legislative intent behind the child support statutes.  Otherwise, parents could simply reach a separate agreement not to enforce the court-ordered support and effectively deprive the child of the right to collect that support.  While there have been limited cases where application of equitable estoppel to child support arrearages made sense, this doctrine should not be used to let parents off the hook for extensive child support debts.  In Colorado, child support is modifiable, and all the forms necessary to request a modification are readily available online and at our courthouses.  If a parent’s financial situation changes in a way that makes payment of the existing order impossible, that parent should move the court to modify child support.  Allowing a parent to simply stop paying, rack up a large amount of debt, and then walk away from that debt if the other parent is not aggressive in pursuing it does a disservice to the child who that support is supposed to benefit.

In light of my obvious slant on this issue, I was thrilled to read Judge Hawthorne’s April 26, 2012 decision in the Turner case.  The opinion not only reinforces the legislature’s intent; it also analyzes equitable estoppel thoroughly by exploring whether electing not to pay child support is really a “detrimental” reliance.  Frankly, a parent who stops paying support benefits from not paying, and the only person who suffers a detriment is the child.

Posted in Case Note, Child Support

Alternate Dispute Resolution: Options when parents cannot solve their own problems

Like many states, Colorado allows parties to submit their disputes to neutral third parties other than judges.  When those disputes arise between parents, the types of people who may become involved in the dispute include mediators, arbitrators, parenting coordinators, or decision-makers.

Generally speaking, mediators and parenting coordinators are only allowed to assist the parties in reaching an agreement and cannot impose a decision upon objecting parents.  The role of a mediator or parenting coordinator is an important one in facilitating communication between parties and helping parents to resolve disputes.  Increasingly, courts are ordering parties to participate in mediation prior to a hearing before the court.  By forcing parties to mediate, courts hope to reduce the cost of litigation and reduce the strain on judicial resources.  Mediation can also lead to more creative solutions that better fit an individual case because the parties are usually in a better position than a judge is to know what will work for their family.  Quite simply, the parties have access to much more information than the legal system ever could about their children.

Like a mediator, a parenting coordinator helps parties resolve their disputes regarding parenting issues without the involvement of a court.  Parenting coordinators can often respond faster than the judicial system and are better equipped to help parties resolve logistical issues or small issues like changes to a parenting plan to accommodate someone’s work schedule.  In Colorado, the court can order the parties to use a parenting coordinator.  One key difference between mediators and parenting coordinators is that mediators are generally appointed or selected to assist with one, discreet problem.  Parenting coordinators are usually appointed for a specific period of time not longer than two years.  C.R.S. section 14-10-128.1(5).  As set forth in the statute, the parenting coordinator’s role during that time is to assist the parties in implementing the parenting plan, develop communication guidelines, and identify and minimize areas of conflict.

As noted above, neither a mediator nor a parenting coordinator can order the parties to do anything however, and their role is only in making recommendations to the parties and facilitating the parties’ negotiations and communications.

When mediation fails, the parties are normally left with the option of going to court.  In addition to the cost associated with a hearing, judicial resources are so stretched in family courts right now that many courtrooms are scheduling even half-day hearings almost a year from the date of filing.  Two options available to them include using an arbitrator or a decision-maker.  Because both of those options effectively allow someone other than the court to make binding decisions regarding parenting plans, they require the parties’ consent before appointment.

One of the attorneys in my office, Misty Ewegen, accepts appointments as a decision-maker.  Arbitration and decision-making are essentially parallel options to mediation and parenting coordination.  Arbitrators are usually hired to address a single, discreet conflict, while decision-makers are appointed for a period of time not to exceed two years.  C.R.S. section 14-10-128.3(5).  Decision-makers are generally on-hand to address issues as they arise.  The specific process a decision-maker uses may vary, but they generally decide issues after getting information from both parties.  Some decision-makers utilize a process that looks much like an arbitration.  Others simply ask the parties to submit whatever information they want the arbitrator to have when making the decision.  Some of the procedural logistics vary based on the nature of the dispute as well; the more complicated the issue, the more process a decision-maker is likely to use.

On April 26, 2012 the Colorado court of appeals decided a case clarifying the role that an arbitrator’s decision plays in the judicial process.  The Colorado statute allowing for the appointment of an arbitrator in domestic relations cases provides that the arbitrator’s decision or “award” shall be effective immediately upon entry.  C.R.S. section 14-10-128.5(1).  Similarly, the statute regarding decision-makers provides that all decisions shall be effective upon issuance.  C.R.S. section 14-10-123.5(3).

In Leverett, however, the court of appeals clarified that the decision being “in effect” does not make the decision an order of the court for purposes of contempt.  The court noted that, because the statute does not include specific information regarding enforcement, it must be read in conformity with the Uniform Arbitration Act, which allows a party to move the district court for an order confirming the award.  Functionally, this is similar to the provisions providing that separation agreements are enforceable between the parties as contracts before the court adopts them as orders.  Practically, this means that parties hoping to enforce the decision must move the court to confirm the decision before filing for contempt.

Posted in Alternate Dispute Resolution, Case Note