Expedited Services Proceedings Can Meet Due Process Test

by Annette Burns on May 15, 2014

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, Court of Appeals of Wisconsin, 2012.

A court cannot simply delegate its decision-making authority to a third party. (DePasquale) In the Wisconsin case, after the GAL’s recommendations were issued, the FCC 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 that review by not objecting to the Recommendations when he had a chance to do so.

This case is important to Arizona family court procedures because Arizona, like Wisconsin and most other family courts, has expedited systems in place to relieve the caseloads in family court. Those expedited systems include GALs (in Arizona this would be a court-appointed advisor or even a Parenting Coordinator), Maricopa County’s expedited services programs, and various forms of ADR.

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.”

The Nehls case should in no way be cited as support that GALs should make final custody decisions. Due process must be maintained which permits a party a hearing on those issues. 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.

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