Parenting Time and Custody Decisions: Sometimes Not Made by a Judge

by Annette Burns on July 15, 2012

A Wisconsin court affirmed that due process considerations were met when a Family  Court Commissioner approved the recommendations of a GAL regarding placement of a child.  (“Placement” is Wisconsin’s term for what we call parenting time in Arizona.)    Nehls v. Nehls

A court cannot simply delegate its decision-making authority to a third party   (DePasquale, etc.)   In the Wisconsin case, after the GAL’s recommendations were issued, the Court sent a notice to the parents indicating its intention to enter the GAL’s recommendations as a placement order, unless someone objected:

“[A]n Order implementing the recommended plan for custody and periods of physical placement will be entered as a FINAL Order of the Court 15 business days from the date of this Notice unless a written objection as stated below is timely received and unless deposits toward [GAL] fees are current.”

When neither party objected, the court entered the Recommendations as a final order.  Father then appealed the parenting time, asking for a de novo review of the issue.  The appellate court denied the de novo review, finding that father had waived his right to review by not objecting to the Recommendation when he had a chance to do so.

This case is important to Arizona family court procedures as well, because Arizona, like Wisconsin and most other family courts, has expedited systems in place to relieve caseloads in family court.  Those expedited systems, including GALs (in Arizona this would be a court-appointed advisor or even a Parenting Coordinator), Maricopa County’s expedited services systems, and many forms of ADR, are necessary for efficient operation of the courts, and in many cases also save the parties substantial time and money in resolving their disputes.

As the Wisconsin court stated:   “The FCC exists for a reason: to expedite the process by screening most cases which can be resolved at a non-evidentiary hearing.  Allowing parties to bypass that step would not promote judicial efficiency.”   Nehls.

The Nehls case should in no way be used for the proposition that GALs should make final custody decisions.  Due process must be maintained which permits a party a hearing on those issues.  The Nehls court provided that opportunity.   The expedited process mechanisms in Arizona maintain due process and permit parties the chance to object and have a hearing.    But a party can’t skip that opportunity, ignore the expedited process and then expect a higher court to conduct a de novo review.

I recently referred in another post to a New Jersey decision that upheld the parties’ agreement to arbitrate their custody and parenting time.   Fawzy v. Fawzy.     It’s worth it (to me) to quote some of the Fawzy decision about parental autonomy in raising their children:

 . . .  [T]he entitlement to autonomous family privacy includes the fundamental right of parents to make decisions regarding custody, parenting time, health, education, and other child-welfare issues between themselves, without state interference. That right does not evaporate when an intact marriage breaks down. It is for that reason, as the parties conceded, that when matrimonial litigants reach a settlement on issues regarding child custody, support, and parenting time, as a practical matter the court does not inquire into the merits of the agreement. It is only when the parents cannot agree that the court becomes the default decision maker.

…   [In Fawzy, Father claimed on appeal that the parents’ agreement to arbitrate their custody dispute should be overturned by the court, because custody/ parenting time should only be determined by a judge, not an arbitrator.]   In response to Father’s request to overturn the arbitration decision, the Court stated:

We see no basis for [carving out the right of the parents to choose arbitration to resolve their disputes].   For us, the bundle of rights that the notion of parental autonomy sweeps in includes the right to decide how issues of custody and parenting time will be resolved.  (Emphasis added) Indeed, we have no hesitation in concluding that, just as parents “choose” to decide issues of custody and parenting time among themselves without court intervention, they may opt to sidestep the judicial process and submit their dispute to an arbitrator whom they have chosen. We agree with legal commentators who have concluded that the right to arbitrate child custody and parenting time serves an important family value in that it . .  allows the parents the opportunity to choose an arbitrator for their custody dispute on the basis of her familiarity with the family or her understanding of the values that the parents hold dear and have tried to follow in raising their child. In such cases, one might reasonably anticipate that the arbitrator will reach a decision that is more in accord with the family’s true needs, wants, and values than would a judge deciding the case in public custody litigation.   [Citing 57 Wash. & Lee L.Rev. at 1210.]

Likewise:  To the extent that parents, even after a good faith effort, cannot agree between themselves on what is best for their children, they should at least have the right to choose the decision-maker and should not be compelled to accept an individual or committee chosen by the state whose values may significantly differ from their own.  [Citing Spencer & Zammit, supra, 1976 Duke L.J. at 918-19.]

The Fawzy court ultimately determined ” . . . the constitutionally protected right to parental autonomy includes the right to submit any family controversy, including one regarding child custody and parenting time, to a decision maker chosen by the parents.” 

Both these cases support the use of GALs, court-appointed advisors and similar processes, and ADR (including arbitration) for custody and parenting time recommendations or decisions.    The parents’ determination to name a decision-maker, like a parent’s decision not to object to a GAL recommendation regarding parenting time, preserves due process in those decisions.

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