In a significant number of cases, in this attorney’s experience in probably about 30 percent of those contested divorces with children, the parents continue fighting and conflict long after they hoped it would all be “over.” The conflict may continue until one of the parties dies, the child grows up and takes over his own decision making or the parents get sick of it and learn to get along more amicably.
In many cases in which there continue to be disputed issues, the parents would serve themselves – and, importantly, their children – well to agree to the appointment of an individual who is a Decision Maker, which is just what it sounds like: An individual who is empowered and appointed to make decisions about the issues related to the kids.
Colorado law, specifically Colorado Revised Statutes §14-10-128.3, provides in pertinent part:
[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 and grant to 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 shall 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.
There are some important rules concerning the appointment of a Decision Maker. First, the Court absolutely cannot decide on its own that the parents have to have one. The parents must agree in writing to the appointment.
If the parents agree to the appointment, but can’t reach agreement on who that specific individual will be, they can ask the Court to choose. In some cases, the Court will ask both sides to submit the names of possible appointees. In others, the Court will merely choose for the parents from those individuals with whom the Court is familiar.
Generally, a Decision Makers will be either a lawyer or a mental health professional, such as a child psychologist. It can, however, be pretty much anyone. So if the two parents both trust their pastor, or their marriage counselor, and that person is willing to accept the appointment, they can agree to ask the Court to appoint that person. Generally, the Decision Maker is paid, but payment is not a requirement.
Second, the Decision Maker has to have written rules governing what he or she does. Third, all the decisions made have to be in writing and submitted to the Court for approval (for review and so that the decisions become Court orders).
Usually, a Decision Maker is appointed for an initial term of two years, but it can be longer or shorter. The appointment can be renewed at the end of the initial term. Often, the parents elect to have the Decision Maker resolve only specified types of disputes. Examples:
--Switches in parenting time, where, for example, one parent is asking to switch a Thursday for a Tuesday, or Halloween for Labor Day.
--Choice of a school, for example, where one parent wants the child to attend a Catholic school and the other parent wants her educated at a public school.
--Choice of extracurricular activities, for example, when one parent wants the four-year-old to play ice hockey and the other parents wants the child to enroll in ballet classes.
--Similarly, the selection of a day care program or provider.
Having a Decision Maker is generally much less expensive than returning to Court to have a Judge or Magistrate make decisions. Hourly rates for Decision Makers who are professionals (lawyers and mental health workers) generally range from about $100 to about $250 hourly. The parents’ attorneys usually are not involved in the Decision Making process.
Furthermore, utilizing an appointed Decision Maker also is usually much quicker than returning to Court for decisions. In some cases, Courts are not able to react in adequate time before it is too late for a decision to make sense (for example, where the Court is asked to choose a school for the child, but doesn’t make the decision until halfway through the school year). Having a Decision Maker usually shaves months off of the time necessary for a decision.
Parents who anticipate they will be facing some disputed issues would do themselves and their children a favor by agreeing at the time the Divorce is granted to have a Decision Maker in place for those specified decisions that are most likely to arise during their co-parenting of their children.