New Colorado Child Custody Decision Regarding Decision-Making
The Colorado Court of Appeals published a case today relevant to family law practitioners and parties, particularly for post-decree modification cases.
In re Marriage of Thomas, 2021 COA 123
This case addresses two issues.
The use of a parent's address for school enrollment does not provide that parent either tie-breaking authority or veto power
There is standardized language in many child custody parenting plans that determines which parent’s address will be used for the purpose of school enrollment. The Court of Appeals determined that the designation of a parent’s address for school enrollment purposes does not give that parent “tie-breaking” authority or “veto power” over school choice if the parents do not agree. If parents have joint decision-making authority, they are required to confer and try to come to an agreement; the courts are not going to allow a parent to end-run the school choice process based on the address of enrollment designation.
Courts can make decisions for parties who do not agree
More importantly, however, the Court of Appeals determined that Colorado courts have the authority to make decisions when the parents reach an impasse. Previous appellate decisions indicated that only parents, not courts, can make decisions for children. Not so anymore. Courts may act as tiebreakers and make decisions when parents cannot.
It is worth noting, too, that the Colorado Supreme Court currently has a case pending on this issue under its original jurisdiciton. There may be additional new law on this issue soon.
When should a Colorado court be a decision-maker instead of a parent?
This is not to say that courts must or should be the default decision-maker. Attorneys and parties should design processes that work well for the particular family and try to avoid adversarial decision-making processes whenever possible. It is rarely in children’s interests to have a judge – often a stranger to the children and with only passing information about the parties – make life-altering decisions about education or healthcare for a child whose parents cannot agree. While sometimes a court may be a necessary tiebreaker, the use of appropriate professionals (lawyers, mediators, arbitrators, parenting coordinators, decision-makers, mental health professionals, and others) can help resolve disputes, maintain parent control over outcomes, lower the temperature, and decrease conflict.