Parental Decision-Making, Vaccines for Children, & Tiebreakers for School Disputes with Katharine Lum | Episode 79

In all child custody agreement, each parent will have to agree to who has decision making authority over the children. In most cases in Colorado, the court will award joint-decision making authority to both cases. What can the court do when there is a dispute between both parents?

Ryan Kalamaya and Katharine (Katy) Lum discuss the definition of decision-making, and what happens if there is a dispute over medical related issues like vaccines, or school related disputes. 

About Katy Lum

Katharine (Katy) Lum is an attorney at Lass Cooper & Ramp LLC. She is the resident appellate specialist and a skilled negotiator with extensive experience as a trial litigator. Her practice includes assisting families with complex financial assets and complex parental responsibilities issues, including those involving substance abuse, domestic violence, and children with medical disabilities.

After attending the University of California, Berkeley, School of Law,  Katy served as a judicial law clerk for Justice Gregory Hobbs of the Colorado Supreme Court before joining Lass Cooper & Ramp. She was named one of the Best Lawyers in America for 2020 and 2021. Katy is also an active volunteer with Metro Volunteer Lawyers and serves on the Executive Council of the DBA Young Lawyers’ Division. When Katy isn’t working, she can be found hiking in the mountains, hanging off the side of a rock face, playing the cello, or baking treats.

What is Divorce at Altitude? 

Ryan Kalamaya and Amy Goscha provide tips and recommendations on issues related to divorce, separation, and co-parenting in Colorado. Ryan and Amy are the founding partners of an innovative and ambitious law firm, Kalamaya | Goscha, that pushes the boundaries to discover new frontiers in family law, personal injuries, and criminal defense in Colorado. 

To subscribe to Divorce at Altitude, click here and select your favorite podcast player. To subscribe to Kalamaya | Goscha's YouTube channel where many of the episodes will be posted as videos,

What is Divorce at Altitude?

Ryan Kalamaya and Amy Goscha provide tips and recommendations on issues related to divorce, separation, and co-parenting in Colorado. Ryan and Amy are the founding partners of an innovative and ambitious law firm, Kalamaya | Goscha, that pushes the boundaries to discover new frontiers in family law, personal injuries, and criminal defense in Colorado.

To subscribe to Divorce at Altitude, click here and select your favorite podcast player. To subscribe to Kalamaya | Goscha's YouTube channel where many of the episodes will be posted as videos, click here. If you have additional questions or would like to speak to one of our attorneys, give us a call at 970-429-5784 or email us at info@kalamaya.law.

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DISCLAIMER: THE COMMENTARY AND OPINIONS ON THIS PODCAST IS FOR ENTERTAINMENT AND INFORMATIONAL PURPOSES AND NOT FOR THE PURPOSE OF PROVIDING LEGAL ADVICE. CONTACT AN ATTORNEY IN YOUR STATE OR AREA TO OBTAIN LEGAL ADVICE ON ANY OF THESE ISSUES.

Transcript

Ryan Kalamaya (3s):
Hey everyone. I'm Ryan Kalamaya

Amy Goscha (6s):
And I'm Amy Goscha

Ryan Kalamaya (8s):
Welcome to Divorce at Altitude. A podcast on Colorado family law

Amy Goscha (13s):
Divorce is not easy. It really sucks. Trust me. I know besides being an experienced divorce attorney, I'm also a divorce.

Ryan Kalamaya (21s):
Whether you are someone considering divorce or a fellow family law attorney listening for weekly tips and insight into topics related to divorce, parenting and separation in Colorado. Welcome back to another episode of Divorce at Altitude. This is Ryan Kalamaya this week. We're going to be talking about decision-making and we are joined by a Denver family law attorney, Catherine Lum, who recently wrote an article on the constitutional issues regarding decision-making in this. We'll get into this, but we're going to talk about vaccines school choice and some of the issues that are involved here in Colorado on decision-making.

Ryan Kalamaya (1m 4s):
So let me tell you a little bit about who Catherine Lum is. She's an associate at last Cooper in ramp, where she brings her sharp analytical skills and comprehensive understanding of Colorado domestic laws and courts to her family law practice. Before she joined last Cooper and ramp, she was a clerk for justice, Gregory Hobbes of the Colorado Supreme court. She attended the Northwestern university as well as art, and then went on to get her JD from the university of California, Berkeley school of law. And she has received numerous other honors, including best lawyers in America. Will Katie welcome to the show.

Ryan Kalamaya (1m 45s):
Thank you so

Katharine Lum (1m 45s):
Much for having me Ryan.

Ryan Kalamaya (1m 47s):
So on your bio, it indicates I wanted to start off with baking, which may be a little bit unusual, but on your bio for your website, it says that you are known for baking treats, which your firm's doctors wish you had stopped. So tell me about what your favorite things are to bake.

Katharine Lum (2m 6s):
I love to bake all kinds of sweets, cakes, cookies, cupcakes. I like to do challenges from the great British baking show, but I'll tell you with COVID and not having really an open office anymore as a place to bring things. I have had to find some new hobbies because otherwise my husband and I just eat them all and that's not good.

Ryan Kalamaya (2m 26s):
Well, my wife is an avid baker herself. She's pretty well known within our friend community. And a lot of people ask me how I deal with all the treats and baked goods, because I don't know how you are, but she won't actually eat them. She loves to make them with our kids, but she doesn't actually eat them. So it's kind of left on the countertop for me to sneak away with some treats here and there. So do you actually eat them?

Katharine Lum (2m 51s):
I don't have as much of a sweet tooth as my husband does. I've been trying to take things to neighbors and whatnot, but I recently took up knitting as an alternative to try and channel some of that energy away from sugar.

Ryan Kalamaya (3m 5s):
Well, maybe I need to check out the knitting and quilting hobbies because Robin Beattie, one of our recent guests who I'm sure, you know, you know, said the same thing in terms of COVID hobbies. I think for her, it's been a long time hobby, but you know, it's something we're all kind of used to particular activities and we're all changing our habits. But speaking of change, we asked you to come on because you wrote an article for the Colorado lawyer, which is for people that don't know the trade journal for the legal community here in Colorado. And it was specifically on this case in remarriage of crouch and the role of constitutional rights and parental decision-making disputes. And it was a fascinating article. If you're a lawyer, you should definitely check it out.

Ryan Kalamaya (3m 47s):
And, but I thought that what we would do is first define parental decision, making some people call it legal custody, but when you meet with a client and you explain Parental decision-making Katie, how do you characterize it? Or describe it

Katharine Lum (4m 3s):
When we talk about parental decision-making responsibility and B an allocating it in Colorado, we're not talking about everyday decisions. We're not talking about what time kids go to bed, or whether they're allowed to watch rated R movies or what they have for dinner or homework. What the courts are talking about when they allocate decision-making responsibility is who is responsible for making the major decisions in a child's life. And those decisions are things like where is the child going to school? What religion is the child going to be raised in what major non-emergency medical procedures is the child undergoing?

Katharine Lum (4m 44s):
And these are things like elective surgery, or as was relevant to my article in this discussion vaccination,

Ryan Kalamaya (4m 51s):
What are the factors that go into decision-making by the core, if we ultimately can't decide or parents can't decide on decision-making. So,

Katharine Lum (5m 2s):
So it depends on whether the court is allocating decision-making responsibility for the first time, or if they are modifying decision-making responsibility that has already been allocated. So there are the court considers all of the statutory best interests factors that go into allocations of parenting time that I'm sure you all have talked about before, but there are three additional factors that the court considers when allocating decision-making authority in the best interests of the child. The first of those is, is there credible evidence of that? The parties have been able to cooperate on major decisions in the past, because if the party's history is riddled with a bunch of disagreements about these issues already, the court is not necessarily going to think it's in the child's best interest to continue trying to make those decisions jointly going forward.

Katharine Lum (5m 54s):
The second sort of special factor is whether the past pattern of involvement of the parents with the child reflects a system of values and commitment and mutual support that indicates that having mutual decision-making is going to be positive for the child. The third is whether an allocation of decision-making mutual decision making responsibility would promote continuing contact between the child and each of the parent. Now, there are also considerations that need to be taken into account in the event. There has been domestic violence, but in general, those are the three big factors that a court looks at when allocating decision-making authority for the first time.

Katharine Lum (6m 40s):
And I think it's important to say here that it's not an all or nothing proposition parties can have joint decision-making authority over all the major decisions. One party can have sole decision making authority or all the major decisions, or you can have combinations. So the parties can have joint decision-making authority over, you know, religious decisions, but there's one party or another has sole decision-making authority over medical decisions and so on and so forth. There are a lot of different permutations.

Ryan Kalamaya (7m 9s):
Yeah. And you mentioned whether or not we've discussed this in the past, there are how to episodes that we've done about specifically with domestic violence, because that can really be something that can change the analysis. And at least in my experience is the most likely or the most persuasive issue that is going to come before the court, when, if there's going to be sole decision-making. What out of your clients, what percentage would you put joint decision-making compared to sole decision-making Katie

Katharine Lum (7m 39s):
In an initial allocation of parental responsibilities of vast, vast majority of my clients have wound up either agreeing to, or the court has ordered joint decision-making authority, you know, for whatever reason, don't see a lot of sole decision-making orders. In my case,

Ryan Kalamaya (7m 58s):
That's been my experience. We've had a guest on from the child custody exchange and they did kind of an analysis on people settling their parenting disputes, went to attorneys are involved in most of the cases that we're working on. There's going to be two attorneys involved. And I'm not sure if it's because we're guiding our clients and, but there's no presumption of joint decision making, but that generally is the trend that at least I see. So if we go back to listeners will recognize that we have a Eric and Melanie Wolfe situation. So the most common arrangement is Eric and Melanie will agree to joint decision-making on educational decisions, but at least from my experience, if there is sole decision-making, it could be for one parent's apathy or not, you know, being agnostic as to religion.

Ryan Kalamaya (8m 44s):
And they might say, I don't really care about this. The other parent feels really strongly about this. The other issue could be in terms of paying for curricular activities that might militate in favor of one parent having sole decision making, but in any event that I just want to kind of verify. And, and I think it's helpful for listeners to hear about where the general trend and client base is because, you know, most people, it's the first time they're going through their divorce and they want to kind of know what's the most common cause it's predictive for what ultimately would happen if they went into court. But that's in the initial phase, let's talk about modification. And that was specifically one of the things that you drilled down on in your article.

Ryan Kalamaya (9m 23s):
So tell our listeners about modification of decision-making and what goes into changing. For example, joint decision making between Eric and Melanie. If Eric later wants to change it, what's the process

Katharine Lum (9m 38s):
Process starts with emotion. The person who wants to change decision-making from, for example, joint to soul, or for that matter sold to joint needs to file a motion with the court, asking the court to make that change. And the standard that the court follows for a modification of decision-making is that the court, and this is quoting from the statute shall not modify a decree allocating decision-making unless it finds upon the basis of facts that have arisen since the prior decree, or that were unknown to the court at the time of the prior decree, that there has been a change in circumstances of the child or the parents.

Katharine Lum (10m 22s):
And that the modification that is being requested is necessary to serve the best interests of the child. And this sounds like we're just going back to the best interest of the child, but there's an additional wrinkle when it comes to modification. The statute that we're talking about 14, 10, 1 31, that governance modification of decision-making says that when figuring out whether a modification is necessary to serve the best interests of the child, the court must retain the prior allocation of decision-making responsibility. So the court can't change it unless it finds that one of the following things has occurred. So unless it finds that the parties have agreed to the modification, in which case, you know, you're not really going to court, unless it finds that the child has been integrated into the family of the person who wants the change and that integration necessitate a change of decision-making.

Katharine Lum (11m 17s):
If it finds that there has been a modification of parenting time warranting, a modification of decision-making, if the party who was supposed to make the decisions has consistently been seeding that responsibility to the other party, or, and this is the one that gets litigated most often, if the current allocation of decision-making authority would endanger the child's physical health or substantially significantly impairs their emotional development and that the harm likely to be caused by the change of environment is outweighed by the advantage of the change to the, so the first four of those factors agreement or changes in parenting time or consent, those are litigated very, very rarely.

Katharine Lum (12m 3s):
I have only had experienced to litigate some of those one time. Certainly when in the vast majority of circumstances that I have seen when parties are asking to change decision-making, they are doing it under this, the last of these factors, which, you know, we'll call the endangerment factor. And which is to say that the person who wants to make the change is saying the current allocation of decision-making authority, endangers the child, or significantly impairs their emotional development. And we need to make the change for that reason,

Ryan Kalamaya (12m 33s):
The only kind of exception or the method by which we're dealing with those first set of factors is in my experience, some drastic change that would really be like a relocation where a parent moves, Eric moves to Florida, and the kids are now with Melanie instead of an equal percent of the time. Then, you know, Melanie has the children, the bulk of the time, and really being able to chime in on the doctor's or the extracurricular activities might be such a, an issue in problem. Four, Eric are Melanie that the court could say, I'm going to award sole decision-making to Melanie after, you know, some sort of relocation, but it really it's that endangerment standard.

Ryan Kalamaya (13m 13s):
I find the statute to be pretty difficult to read because of just the way that it's stranded, but let's talk about endangerment endangerment. It comes up in parenting time, it comes up in motions to restrict and it comes up in decision-making and specifically modification. So when we, you and I, family law professionals use the word endangerment. So term of our, what are we talking about Katie? When we say endangerment,

Katharine Lum (13m 38s):
Well, this is every lawyers, favorite answer, and every client's least favorite answer, I think, which is that it depends even in motions to restrict, I found that courts give widely varying answers on what counts as endangerment, but in the crouch case, which we will get to the court found, for example, that the children were physically endangered by not being vaccinated as a result of the current allocation of decision-making. But I have also had a court find that children were endangered just by the level of extreme conflict between the parties around major decision-making, that it was, you know, impairing their emotional development to be around that level of conflict all the time.

Katharine Lum (14m 24s):
So I wish that I had a good definition of endangerment or impairment of emotional development to give people, but I, I have found that it is incredibly fact and circumstance depends.

Ryan Kalamaya (14m 35s):
Yeah. Either a case where a party keeps on emailing the children, their teenagers, about a particular incident that happened. I'm a conflict. And the other attorney is essentially going to argue that those emails that just are addressing divorce and conflict are endangering the children. And so I think, you know, people can disagree on that and, you know, certainly if someone's drinking and driving with the kids in the car, there's not going to be any dispute. If a parent gets a DUI for example, or is found, passed out with their children, because they're so drunk, that is a slam dunk endangerment.

Ryan Kalamaya (15m 17s):
But I think it's really on the margin, but yeah, let's talk about crouch in vaccines because I mean, we're recording this in the age of COVID and vaccines. I mean, it's a hot button political topic, but let's set aside that and really kind of get into vaccines and crowds. So what happened first of all, it gives some background to crouch. You referenced it earlier, what was going on in the crouch case?

Katharine Lum (15m 40s):
Yeah, absolutely. So in the crouch case, the background was that the parties had gotten divorced several years before the case came up and was decided, and in their divorce, the parties had, you know, as you mentioned earlier, reached an agreement about parenting time, that included joint decision-making. So they said, Hey, we agree. We're going to jointly decide all of these major issues related to our kids. And they went further and had a specific agreement that they were not planning to vaccinate their children. And this was pre COVID. So this was, we weren't talking about COVID vaccinations in this case, we're just talking about, you know, regular childhood vaccinations. So the parties also had employed, and I know that we're going to talk about this a little bit later.

Katharine Lum (16m 23s):
Somebody called a decision maker, and that is a person who, you know, isn't a judge, but is frequently an attorney who if the parties agree, they can say that this specific person is going to be appointed to resolve disagreements that we have about the parenting plan, including making joint decisions over some of these issues. So some years after the divorce for, you know, for a variety of reasons, the father who I'm just going to call dad decided that he changed his mind and he wanted the children to be vaccinated. They took that disagreement that they were having to this decision-maker and said, resolve this for us.

Katharine Lum (17m 4s):
The decision maker said, I am not resolving this for you. And the quote that was in the case, that in the court of appeals case said that the decision maker was worried because she felt that resolving that decision for the parties was akin to practicing medicine without a license. So she essentially refused to resolve the issue. So the parents are still at loggerheads about whether to vaccinate their kids. And dad filed a motion with the court asking that he have sole decision-making over medical issues under this endangerment standard. Dad said, Hey, court, the kids are endangered by not being vaccinated. We can't get them vaccinated because mom won't agree to get them vaccinated.

Katharine Lum (17m 47s):
We need to change the allocation of authority so that I have the sole authority to make medical decisions. So I can get these kids vaccinated. The case went to trial, and I will talk about the trial court's decision. And the trial court is the judge that the parties actually argued the case in front of what the trial court said was the trial court heard from the parties. And it heard from an expert hired by each of the parties about vaccination. And again, dad was arguing here. These kids need to be vaccinated for their health among other things it's endangering them not to be vaccinated in dad presented a medical expert to sort of back him up.

Katharine Lum (18m 28s):
Mom said, I have concerns about the side effects of vaccinations, and she presented a medical expert to back her up. But she also said that she had religious objections to the children being vaccinated. And so the court hears all the evidence and then it makes its decision. And what the trial court said was that it agreed with dad that the children were, you know, the dad had met the endangerment stats standard in the statute. The children were endangered by not being vaccinated, but the court said that because vaccination infringed on mother's ability to exercise her religion freely dad needed to meet an additional standard of proving that there was substantial harm to the child from not being vaccinated.

Katharine Lum (19m 19s):
And because the court said, dad, didn't meet that additional standard. The court denied dad's motion and left decision-making as joint. So that's what happened in the underlying case.

Ryan Kalamaya (19m 31s):
This episode is brought to you by our law firm. Kalamaya Gosha Amy. And I describe our law firm as an innovative and ambitious trial team that pushes the boundaries to discover a new frontier is and family law, personal injuries in criminal defense in Colorado. We currently have opposites in Aspen, Glenwood Springs, Edwards, Denver, and Boulder. If you want to find out more, visit our website, Kalamaya dot law now back to the show. Well, so I think it's interesting. And you can explain in terms of the court of appeals, where I think it's really important to know that the father, he asked to obtain sole decision-making.

Ryan Kalamaya (20m 14s):
He did not ask for the court to be a tie-breaker. When it comes to the vaccine, the vaccine was essentially the catalyst that resulted in him requesting for sole decision making. And we'll talk about this with schools, but I thought that was a really interesting part of your article about how the lawyer for the father could have drafted it differently, the motion, or saw a different type of request in that interim would maybe change the ultimate result. But why don't you talk about what the court of appeals did in where we find ourselves as we sit here today with vaccines and decision-making on this particular issue,

Katharine Lum (20m 56s):
That sounds good. I do want to come back to that, the options that you have as a lawyer and that your clients have at their disposal for, you know, what do you want the court to do in a situation like this? Because it is important. So father was not happy with the trial court's ruling. So he appealed that decision to the court of appeals and the court of appeals. The primary issue that they had to grapple with in this case was did the trial court apply the right legal standard in making its decision. So, and remember what the trial court had essentially said was dad had to basically prove endangerment plus substantial harm.

Katharine Lum (21m 42s):
And the court of appeals in a nutshell said that was wrong. And I'm going to give a little bit of background really briefly on the types of standards the court of appeals needed to think about and where we get those from. So that you have a little bit of background. As we explained, this is going to get a little bit technical. So the court of appeals said, okay, do we apply the endangerment standard? That's found in the statute to this reallocation of decision-making, do we apply these sorts of substantial harm test that the trial court indicated do we apply strict scrutiny? And what strict scrutiny is a legal standard that says when a state enters an order or a law that infringes upon certain constitutional rights, including religion, the state needs to show a compelling state interest in order to enter that order or make that law.

Katharine Lum (22m 38s):
An example of a compelling state interest might be substantial harm to a child. So there was a case that was decided in 2006, called in re marriage of mixed sued, where the court imposed a rule that said, mom cannot take the child to her religious ceremonies on mom's parenting time, unless she also supported the child in dad's religious ceremonies. And the court made that work. And the court of appeals in that case said, you can't make that order unless you show that there is some substantial harm to the child by mom taking the child to her religious practices during her parenting time.

Katharine Lum (23m 21s):
And that case was largely what the trial court relied on here to say, you know, because vaccinating the child infringes on mom's religious rights, dad, you need to show that there is substantial harm to the child from not being vaccinated. And when the court of appeals really looked at this issue, they said, whoa, whoa, whoa, hang on. All the trial court did in this case was say that dad has decision-making authority over an issue. The court did not say to vaccinate the child or not. And this is the really critical distinction here. The court just said, dad, you have authority to make medical decisions. We don't necessarily care what you decide, but you have the authority to do it.

Katharine Lum (24m 3s):
And so because of that nuance, because the court did not say vaccinate or not vaccinate, it just said, dad is making the decision about whether to vaccinate. There was no additional heightened standard required. The only thing that the court needed to find was from the statute that the current allocation of decision-making authority, endangered the children and that the advantage of the change outweighed any harm caused by the change. So this is maybe a good place to pause and talk about one more nuance, which is that, you know, nobody on appeal argued that the trial court's findings regarding endangerment were wrong.

Katharine Lum (24m 46s):
You know, so the court of appeals did not decide and did not have anything to do with whether vaccinating your child or not vaccinating your child is best for the child, because that was not something that was being argued. All the court of appeals was deciding is what standard applied to a modification of who gets to make the decisions for this child.

Ryan Kalamaya (25m 7s):
Right. And, you know, at least from my take and correct me if I'm wrong, the trial court essentially agreed with the medical expert that the father presented in terms of the endangerment, but then took the additional step in really addressing this religious reason, which was really based on the vaccine. It wasn't, I object to sole decision-making on religious grounds. It was more of the end result that was going to happen if the court granted the father's motion for sole decision-making. So it's kind of the forest from the trees and who is looking at what everyone knew, what was going to happen if the court awarded sole decision-making. But the way that it was presented was this argument that was essentially legal in nature about sole decision-making and vaccine issue was more or less the proxy war that was being waged in that really mattered for what happened.

Katharine Lum (26m 3s):
That's exactly right. And so, you know, the end, the practical result, the kids are getting vaccinated is the same, but the type of decision the trial court makes, makes a big difference in the type of legal standard they have to apply. And that's going to be something that's going to be really important for both clients and practitioners to think about when you're, you know, you're faced with parties who can't reach an agreement about a joint decision. Do you ask the trial court to just break the tie and say vaccinate or don't vaccinate or private school versus public school? Or do you go down the path of saying, I actually want to reallocate authority and they have their pros and cons.

Ryan Kalamaya (26m 47s):
And we'll talk about arbitration and PCMs after we discuss school. Because I think school is a little bit more where it's hard to argue or, I mean, I'm sure it's been done, but when you talk about endangerment, there just might be more of a preference. I think this school is better than the other. It's harder to make the argument that a child is endangered. Maybe if there's a bullying issue or something else where there's maybe some special needs. I could certainly envision that. But talk to me about the school issue and the tie-breaking versus sole decision-making with the crouch kind of background that you just went over.

Katharine Lum (27m 25s):
Well, I do want to back up and address one thing that crouch did say, which is that, you know, they were very careful to say that it is not like the parent's constitutional rights don't matter, but they said that the appropriate place to address that is when the court is also assessing in a reallocation of decision-making authority, whether the harm that is caused by the change is outweighed by the advantage of the change. The court can assess the parent's competing constitutional rights, to the extent that those are relevant to the endangerment standard in that sort of second prong of the decision. So it was not like the court was saying, we don't address this at all. It's just not addressed in the way that the trial court wanted to do that.

Ryan Kalamaya (28m 7s):
Right. And it's similar to the relocation issues that we see in terms of that there's a constitutional right to travel and a parent to live wherever they want. But then there's also this constitutional right to parent. And so in spammer and Cieslik, the court went through this constitutional analysis of where do we go from here? And these constitutional issues. I mean, infrequently, we deal with these in, in family law, but they do arise. And they are really interesting when you kind of have that backdrop of the law that is additive.

Katharine Lum (28m 41s):
And so when you are, when we're talking about the court, I think you mentioned we wanted to talk about the court as a tie breaker. And a lot of these discussions are going to be talking about what happens when we have parents who are joint decision makers, who wind up disagreeing about something, which is by far the, I don't know about you Ryan, but it's by far the most common scenario that I see when there are decision-making issues that arise in, in my cases,

Ryan Kalamaya (29m 5s):
Yeah, June, July, August, I've certainly had cases where a child was sitting at home, for example, because they could not agree on the school. And I know that some judges, they kind of carve out, they know it's coming, that they're going to get a slew of disputes on school. So, and again, it depends on the judge. So talk to me about what happens in those cases or what is at play, the legal issues at play when people can't agree on school.

Katharine Lum (29m 32s):
Right. So well, for, for a long time, until September of this year, there was a real question about whether of any court have the, to actually break a tie between parents who couldn't agree on school or vaccination in September there, a case came out of the Colorado court of appeals in re marriage of Thomas that said, Nope, trial courts have the ability to break that tie. And, you know, they have the authority. Now, according to the Colorado court of appeals, that decision might be going up to the Colorado Supreme court. And if it does, the Supreme court might weigh in, but they also might not.

Katharine Lum (30m 12s):
And if that's the case, then this decision is what stance. So if you are going to a judge and you're saying, we can't agree about where to send our child to school, judge make the decision that is hard for judges. And I think they don't like doing it because they're essentially having to step into the position of a parent. They know very little about the kid. So, you know, parents are going to be presenting in the case of school choice, presenting things like, you know, statistics and test scores and neighborhood, and you know, all of the tens of thousands of issues that make deciding where your kid goes to school, hard enough for married couples going to be presenting that to the court and asking the court to make a choice between this school over here and that school over there.

Katharine Lum (30m 56s):
And that's a hard place for courts to be.

Ryan Kalamaya (30m 58s):
And, you know, there's judges up and down the roaring fork valley. I know where their kids go to school. And it always is one of those things where if there's a dispute involving that particular school, you wonder how much of their human element comes into play. I mean, there's a reason that the judge puts their child in a particular school, especially if it's private school and what that really tells you, but oftentimes judges, they don't have the time or they'll give parties an hour in a hearing. And this is something that is really important to them. And so one vehicle or an alternative is you referenced it early as a decision maker. So can you explain for our audience, why a parenting coordinator, decision maker, a P CDM, or an arbitrator or a PC dam with arbitration authority, why parents often will use the alternative method to break a tie, for example, in the school issue or vaccines, you referenced it in the crouch case.

Ryan Kalamaya (31m 58s):
So talk to me about what that rubric or that framework is based on.

Katharine Lum (32m 4s):
So the main advantage, I think to having someone like a PC DM or an arbitrator in place to make decisions, you know, to break ties is speed. As you mentioned earlier, the courts can get really backlogged, especially now with COVID and having someone in place can get you a decision work quickly. And often these decisions are extremely time sensitive. And while it would be great, if all parties were very forward-looking about, you know, school choice before it really became an urgent matter. That's not always the case because we're all humans. So parents, when they disagree in July about where to send their child to school, starting in August needed decision to be made much more quickly than a court can make it.

Katharine Lum (32m 52s):
And that is the main reason I see most people turning to private resolution for those types of issues.

Ryan Kalamaya (32m 60s):
I agree. And I've seen situations where parents went to a P CDM and they did not have attorneys, or they at least had the attorneys kind of working in the background, but they went, they presented to the PC DM, who, you know, in this circumstance, it was just on one discrete issue where the children go to school, they presented Google maps about the commute, because that was one of the main issues is how long was it going to take? And the sports programs, school, grade schools.org, and those sorts of things. And they were allowed a whole day now, they paid for it, but they went and they presented their case.

Ryan Kalamaya (33m 40s):
And the PCM really came out with a very thoughtful decision and not to say that judges, you know, a district court judge is not thoughtful. It's just the bandwidth. And so both parties knew that they were going to get more time in a more thoughtful consideration and ended up, you know, really working out. But I, at least for my clients, there could be a dispute about whether or not the kids should go to Mexico and whether or not that's safe and all these other issues about football, whether, you know, a child should play football. And when you have that institutional knowledge that is acquired over time, it is, you know, there's something to be said for those PCDs.

Ryan Kalamaya (34m 20s):
But as you pointed out in your article, what law, or what constitutional issues do the PCMs or arbitrators, cause it's a different statute, but it's the same motivation of that informal speedy decision-making on parenting. What are the considerations that lawyers or people that are going through a divorce or have been through a divorce in Colorado? What are they going to really think about or should think about when it comes to the law, the, a PCD M or an arbitrator applies

Katharine Lum (34m 52s):
<em></em> and arbitrators are there private party? And the only, at least for arbitrators, the only laws that apply to that, that they need to apply in a case are the laws that they have agreed to apply it to the case in their arbitration agreement. So if you want a, an arbitrator to consider whether, to, you know, if you want the arbitrator to apply Colorado domestic relations law, to the case, you need to specify that in your arbitration agreement. I mean, otherwise they can do what they want. They will probably apply Colorado domestic relations law because you know, most of them are domestic relations lawyers, but you need to consider spelling that out PC DMS it's quite similar, except that they are only authorized to deal with disputes and interpretation regarding the parenting plan that is already in place.

Katharine Lum (35m 51s):
They are not permitted to determine modifications to that plan. So it's a little bit of a similar concept, but the parenting plan becomes, you know, it restricts them in a way that it doesn't restrict arbitrator.

Ryan Kalamaya (36m 6s):
And I think that, yeah, not to interrupt, but I think it really depends on the PCD on, because I've certainly seen PCMs that they see the it's kind of the constitutional interpretation of do I stay within the four corners of the parenting plan? Or am I going to read in tan in how far are they going to fall a straight because you and I both know Katie, there's no perfect parenting plan. There's no parenting plan that is going to contemplate a pandemic before it happens. And so it's, what do you do with that? And PCDs can really kind of vary on their interpretation of what is in the parenting plan, right?

Katharine Lum (36m 40s):
And something else that lawyers especially really need to consider when appointing a private party, whether it's a PC DM or an arbitrator to resolve a dispute is that these parties are not state actors. So if they make a decision that infringes on somebody's religious rights there, well, if they make a decision that affects somebody's religious rights, it's not a state action. So those constitutional protections that for example, protected the mom from the court saying, you can't take your kids to your church. Those constitutional protections do not apply to arbitrators or PCDs, unless you specifically write into the contract that you have to apply these constitutional protections.

Katharine Lum (37m 26s):
So it's important to ask, what are you asking that party to do? What are you asking them to decide? And it's important to ask what laws are they deciding that under an explicitly spell that out.

Ryan Kalamaya (37m 40s):
Right. And I, you know, there was an interesting presentation at the family law Institute. You know, the divorce lawyers conference this past summer about arbitration and handling that because the pallet guidelines in the right of appeal is different for arbitration compared to a, for example, a PCD. And that is maybe something that we can discuss on a second episodes with you, Katie, because you clearly know the ins and the outs. And I think people are interested in finding out more. So we'll have you come back on hopefully and, you know, get into that. But why don't you tell people where they can find out more information, if there are lawyers that have questions, if they're prospective clients or, you know, someone that just wants to find more out about you, Katie, where can they find you

Katharine Lum (38m 26s):
And find me at my email, which is K L U M at family law, 52 eighty.com. You can also reach our firm at our website, which is family law, 52 eighty.com. And you'll be able to find out more about our firm at that website.

Ryan Kalamaya (38m 47s):
Well, I know Jeremy ramp, one of the partners in your firm has been very gracious in answering questions and as someone that I think very highly of and, and, but yeah, for anyone that wants to find out more about decision-making and what all goes into those constitutional issues or something maybe a little bit more basic reach out to Katie, but for now, Katie, thank you for the time and really enjoyed learning about crouch in your article. I thought it was really well-written and it was point because a lot of us are waiting through, especially the vaccines, you know, that we are really having to kind of go through that with our clients and it was very helpful. So thank you.

Ryan Kalamaya (39m 26s):
Thank

Katharine Lum (39m 27s):
You so much. And thanks for having me on

Ryan Kalamaya (39m 29s):
Everyone. This is Ryan again. Thank you for joining us on Divorce at Altitude. If you found our tips, insight or discussion, helpful, please tell a friend about this podcast for show notes, additional resources or links mentioned on today's episode. Visit to force@altitude.com. Follow us on apple podcasts, Spotify, or wherever you listen to it. Many of our episodes are also posted on YouTube. You can also find Amy and me at Kalamaya dot law or 9 7 8 3 1 5 2 3 6 5 that's K a L a M a Y a.law.