While the Colorado Supreme Court is actively considering whether judges have the authority to break ties in major parenting decisions where the divorced parties cannot agree, the Court of Appeals has waded into the controversy and decided the answer is yes.
A panel of three appellate judges on Thursday ruled that an Adams County judge acted properly in deciding where a child would attend school for the 2020-2021 school year after the mother and father had reached an impasse.
Although judges are effectively strangers with a limited understanding of a child's needs, Judge Ted C. Tow III wrote for the appellate panel, "when one or both of those parents are unable to responsibly discharge their duty to make a particular decision, a court is sometimes left with no alternative but to do so."
The decision comes as the state's highest court has taken up the appeal of Hakiowskie Flores, a father who is seeking for the judge in his own case to break the tie over where his children will attend school, after he and his ex-wife could not agree.
"In an ideal world, parents would always be able to reach agreements regarding their children’s upbringing; the parents know their children better than anyone," said Christopher J. Linas, Flores' attorney. "But sometimes impasses happen and you need someone with authority to just get the decision made. A decision made by a child’s parents is better than a decision by a judge, but a decision by a judge is better than no decision at all."
The cases of Flores in Jefferson County and the Adams County appeal from Sergei B. Thomas highlight the different positions judges may take in parental rights matters and the need for clarification from higher courts. Thomas, who is himself a family law attorney, got divorced in 2006 and a parenting plan for their son was part of the separation.
He and his ex-wife agreed that they would make all major decisions together on issues of education, health care, religion and extracurricular activities. However, the agreement stated that the court was empowered to make the final determination in disputes.
In August 2020, Thomas wanted their son to attend school in Adams County, while his ex-wife preferred Jefferson County. Each presented arguments to District Court Judge Kyle P. Seedorf. Although the parenting agreement stipulated that Thomas' address would be used for school attendance, Seedorf broke the tie in favor of sending the child to Jefferson County for high school.
"From my own experience," Thomas told Colorado Politics, "in cases where there's joint decision making but there's an impasse, the courts have not made the decision to break that tie. It just seems to me that you can't have something this important subject to a varying application of the law depending on which jurisdiction you're in or which judicial officer you're in front of."
By contrast, when Flores appeared before District Court Judge Randall C. Arp in Jeffco, the judge decided he had no authority to resolve the schooling decision unless the children were endangered. Flores and his ex-wife engaged in a virtual tug-of-war over the enrollment, taking turns changing their children's address on record with the school district. Ultimately, the school district froze the account and made the decision for the parents about where the children would attend.
Linas, the lawyer for Flores, said he hopes the Court of Appeals' decision in Thomas's case will persuade the Supreme Court to side with his client.
"We are not claiming parents can or should take each other to court every time they disagree over something like what their kids’ allowance should be or whether they can watch a PG-13 movie," he said. "Also, an individual parent can make decisions in a genuine emergency, such as if a child is in the hospital and will be endangered if a medical decision is not made immediately. But for decisions that do not need to be made in an instant, but nevertheless significantly affect children’s lives — what school they go to is a good example — there needs to be some mechanism to resolve impasses."
The last time the Supreme Court addressed the issue of a parental impasse was in the 1985 decision of Griffin v. Griffin. There, the justices found the parenting agreement had no enforcement mechanism for when the parents could not agree, meaning a court could not break the tie. However, the Supreme Court awarded the decision to the mother, as she was the "custodial parent" — the one with ultimate decision making authority.
Since Griffin, lawmakers eliminated the custodial parent authority, leading the Court of Appeals to conclude that there was no longer a universal default decision maker. But importantly, the law does not prevent judges from breaking the tie, and in Thomas's case, the parenting agreement explicitly endorsed it. An appeals court panel in 2006 reached a similar conclusion regarding whether to enroll a couple's children in therapy.
"As a practical matter, I think it's correct," said Carrie E. Vonachen, a family law attorney at The Law Offices of Rodger C. Daley and Associates, who reviewed the Court of Appeals' decision in Thomas. The category of major parenting decisions might also apply in disputes over COVID-19 vaccinations.
"Here's what I've seen that's a problem," added her colleague, Rodger Daley. Judges "will decide whether the kid lives in New Jersey or China, but they don't like deciding the [child's] therapist. 'I don't pick therapists. I don't pick schools.'
"Well, you know what?" Daley continued. "I think you need to expand your résumé."