It would be easy to read recent Court of Appeals decisions (Gish for example) as limiting a trial court’s power to appoint independent mental health experts to help with the implementation and enforcement of parenting plans. That’s not the case. Gish and other cases (some of them remaining unpublished) are valuable in helping attorneys and trial courts know how to properly appoint an outside expert. [I wrote about Gish here.]
The first few keys to an appropriate appointment are making sure:
- There’s a pending petition or pending proceedings going on with the court.
The exact language from Brittner v. Lanzilotta is that the expert must be formulating an opinion about an issue currently pending before the court to advise the court. To invoke § 25-405(B) and appoint an expert to advise the court, there must be a pending motion, scheduled review hearing, or some other unresolved proceeding before the court.
- The parenting time orders are specific and the expert is clear about what s/he is to be doing with them.
- There’s no unlawful delegation of court authority to the expert (i.e. specific parenting time orders are in place).
- Due process for both parties is preserved if there are to be any changes to the orders/ parenting time.
One of the newer tools for assistance with enforcement of court orders is the COBI: a Court-Ordered Behavioral Interventionist. The COBI process is based on statutes and rules that have been around for awhile (see descriptions below), but the COBI process is new as of 2021.
An order appointing a TI or COBI cannot:
- Use language such as “parenting time will progress as directed by the TI”. This is an unlawful delegation of court authority to a 3rd party.
- State that a parent’s supervised parenting time will end when the TI says so. Not only is this an unlawful delegation of court authority but it also denies a party due process, as the parties have a right to a court’s determination about whether supervision of parenting time (under ARS §25-410B) is in effect.
- Set automatic (“self-effectuating”) changes to parenting time, unless the automatic event is something that cannot be disputed, such as a specific date, or the child’s age. A disputable milestone, such as compliance with drug testing, or the child’s “readiness” for access, is a determination that must be made by the court. Gish, footnote 2.
All of these decisions are decisions that can only be made by the judge.
COBI = Court-appointed Behavioral Interventionist. A COBI order is a fine-tuning and clarification of what we’ve known (in Arizona) as Therapeutic Intervention (TI). COBI, like TI, is a process.
COBIs are appointed only if the court can go through a specific checklist of items and find that all items apply to a case, and here is that Checklist:
Checklist for appointment of COBI
____ 1. Both parents are fit.
____ 2. There are no safety issues impacting the implementation of the parenting plan.[1]
_____ 3. The parties have the financial resources to fund the COBI process.[2]
_____ 4. The court has inserted the parenting schedule provisions required under the “Fitness” section of the order.[3]
_____ 5. The Court has inserted the summary of concerns of each parent in the “Basis for Referral’ section of the order.
_____ 6. The Court has set the length of the appointment in the “appointment and Term” section of the order.
_____ 7. The Court has designated the fee allocation in the “Fee” section.
_____ 8. The Court has set the 30-day procedural review hearing date.[4]
_____ 9. The Court has set the 90-day substantive review hearing date.
_____10. There is a pending petition or ongoing enforcement proceedings (such as status conferences) pending with the court.
If all of these items apply to a case that needs implementation, oversight, and/ or enforcement of specific parenting time orders, a COBI can be appointed for the family.
Conversely, a COBI cannot be appointed if (a) there are allegations of a parent’s fitness that have not already been resolved by a court order; or (b) there are no specific court orders for parenting time.
The legal authorization for a COBI appointment remains ARS 25-405B and Rule 95(b), Arizona Rules of Family Law Procedure.
[1] Items 1 and 2 mean the court has already held a hearing on any allegations that a child should not have contact (or should have limited contact) with a parent because of safety or fitness concerns. Too often, the TI process has been derailed by one parent’s claims that court orders are not in the child’s best interests and should not be followed. These checklist items means the court has already considered these concerns and made findings that court orders should be followed.
[2] This is logical, and is required by Rule 95, Arizona Rules of Family Law Procedure.
[3] Insertion of the specific court orders is important to tell the COBI what it is s/he should be enforcing.
[4] Items 8 and 9 are important to show that the court maintains oversight and jurisdiction over the COBI and other pending proceedings (which will often be enforcement proceedings).
