January 2005

MINUTES

FAMILY LAW LUNCHEON

EXECUTIVE COUNCIL MEETING

    JANUARY 21, 2005

(Action items and motions and votes on motions are in bold)

The Executive Council Meeting was called to order by the Chair, Bonnie Schriner.  In attendance were: Russell Murray, Mary Jane Cox,  Kathryn Beck, Jackie St. Joan, Martin Brown, Robert Hinds, Jordan Fox, Bob Malman, Robert Smith, Brenda Storey, Lesleigh Monahan, Steve McBride, Michael DiManna, Gina Weitzenkorn, Beth Henson, Meghan Combs, Marie Moses, Steve Lass, Fran Fontana, Sheila Gutterman, Terry Bernuth, David Littman, Steve Epstein, Barbara Solomon, Joan McWilliams, and  Dave Johnson.  Attending by phone were Deb Anderson, Mike Luchetta and Katie Hays.  Guests were: Jennifer Feingold, John Eckelberry, and Ellen Squires.  Excused absences: Dick Rotole.   Absent: Gretchen Aultman, Richard Zuber.  

The minutes of the October 15, 2004 meeting were adopted. 

OFFICERS REPORTS:

Bonnie Schriner reported that we had a sellout crowd for the luncheon today on implementing Rule 16.2.  Additionally, 35 individuals attended by phone.  This phone CLE was offered free of charge.

Bonnie also reported the AFCC Conference will take place in May in Seattle.  There was discussion concerning the benefits of this conference and the proposal of having two members of the Executive Council attend every year.  Dave Johnson made a motion that the chair and chair elect be authorized to attend in 2005 and that in the future the chair elect and a representative of the legislative committee attend.  The cost for the AFCC Conference this year was distributed to the Council members and is approximately $1,575 per person.  The motion was unanimously carried.  This expense will be authorized for 2005 and annually in the future.

The Treasurer's report from Kathryn Beck was distributed and a copy is attached to these minutes.  The treasury as of the December 31, 2004 statement has a balance of $78,569.41.

OLD BUSINESS:

Colorado Lawyer:  Articles for the Colorado Lawyer are again solicited. 

Luncheons:  Sheila Gutterman pointed out that the Executive Council and luncheon meeting in February will occur on the Friday prior to the President's Day weekend.  She asked if it was possible to reschedule the Executive Council meeting.  Bonnie indicated that members are free to phone in if they are out of town.  It was noted that in the future we need to be cognizant of the Jewish holidays which occur in October and the legal holidays which occur in January and February when scheduling the luncheons and Executive Council meetings. 

Bench Book:  Joan McWilliams reported that the bench book committee is moving forward and has recently obtained several volunteers to help with this project.  Joan indicated that she will probably be asking Executive Council members to at least help with the editing and proofreading.  There was a discussion about the target date for completing the latest edition of the bench book.  It was suggested that we try to get this done by the time of the Family Law Institute in August 2005. 

Expert Directory: Rob Hinds reported that the expert directory is almost finished and he hopes to have a final product within the next three to four weeks. 

Rule 16.2 Update: Dave Johnson reported that the case management orders for the new Rule 16.2 for a number of districts are now on the State Judicial website and on the Family Law Section=s website. 

NEW BUSINESS: 

Amicus Committee: The Amicus Committee, Ron Litvak and Mary Jane Cox, reported that there have been three requests for amicus briefs. 

The first came from Hillary Greer Fike and concerns a PERA  class action case she is handling.  The trial court determined that there was no constitutional issue and the plaintiffs are currently considering whether to file a motion to reconsider.  Ron Litvak suggested that he prepare a position statement and submit it to the Executive Council prior to making a decision on submitting a brief. 

The second request was from Bill King and involves a pro se divorce where the parties checked a box granting the mother permission to make decisions on relocation.  After the decree was entered, mother decided to move out of state with the children and the father objected and his objection was denied by the magistrate.  (There was some discussion concerning this issue at the AAML seminar in December.)  Ron Litvak again suggested that he provide a position statement for the Executive Council to consider.  Bill King is not sure if his client wishes to appeal, so no action is needed at this time. 

The third case is a request from Jim Rogers.  It involves a contempt case and a request for the award of attorney's fees.  Again the client is not sure if he wishes to appeal so there is no action required at the present time. 

Family Issues Committee: Dave Johnson reported that the Standing Committee on Family Law Issues has formed a sub-committee to address ethical issues faced by domestic relations lawyers.  That committee would like to alert the family law section to the work being done by the subcommittee and to solicit assistance or collaboration from the family law section.  There was general discussion about some of the concerns with confidentiality under new Rule 16.2.  Bonnie Schriner suggested that a task force be formed to review these ethical issues and to liaison with the standing committee subcommittee.  Gina Weitzenkorn reported that the subcommittee of the standing committee has approached the associate dean at DU and has requested research help from law students at both DU and CU.  Bonnie asked that anyone interested in serving on the task force contact her.

LEGISLATIVE COMMITTEE:

Marie Moses made the report for the legislative committee.  She reported that a number of bills have been proposed which the family law section need not concern itself with at the present time.  These include Senate Bill 30 which is concerned with family friendly courts, providing information and child care to families going through the court system.

House Bill 1093 is seeking to include finger prints for adoption petitions, and this will be in addition to the current CBI report. 

House Bill 1065 addresses name changes for minors.  If the minor has been involved in a custody or domestic relations case, the bill proposes that any name change go through that case. 

Marie then reported on the significant bills which require consideration by the family law section. 

House Bill 1038: This bill would automatically terminate child support without a motion when a child turns 19.  There was a recommendation from the legislative committee that Steve Lass discuss the bill with Representative Cadman, the sponsor, so that the bill would include language that would require a review of the child support if other children are still covered by the child support order.  Upon motion made and seconded, the recommendation of the legislative committee was adopted.  Steve Lass is to contact Representative Cadman concerning the change discussed. 

Child Support Bill: This bill has not yet been proposed but is the product of the judicial department.  It requires a notice to be included in the petition, the summons and at the first hearing in paternity cases concerning genetic testing.  The notice would advise parties that if genetic testing is not obtained before a final order is entered concerning paternity, then such testing may not be available or submitted as evidence in the future.  There was a general discussion about the bill.  The legislative committee recommended that we support the bill and the family law section suggested that language be added to the bill concerning obtaining genetic testing when such would be in the best interests of the child, i.e., for purposes of medical treatment or if there has been a fraudulent representation concerning paternity.  Rob Malman expressed a concern that pro se people do not know what they are doing in court now and that this bill may prevent them from seeking genetic testing even if they do not know what they are doing when they do not seek genetic testing.  The consensus of the family law section was to have Marie Moses contact the sponsor about clarifying the language regarding the opportunity to challenge or obtain testing in the future if it is in the best interest of the child.  There was a suggestion from Jacqueline St. Joan that the language of the advisement was too legalistic and should be drafted in plain English. 

Marie and Beth Henson (Beth is the liaison with the Other Professionals Subcommittee of the Standing Committee on Family Law Issues) then reported on the three bills which involve children's issues:

House Bill 1157: This is the bill which would limit the right to obtain a supplemental evaluation if a special advocate has rendered a report and if there has been an original evaluation under C.R.S. 14-10-127.  The legislative committee recommended that the family law section support the bill if the bill is clarified to state that the special advocate report must  Asubstantially address the parenting time and allocation of parental rights issues.@  There was general discussion concerning the bill and the clarification suggested by the legislative committee.  David Littman stated that in his opinion the additional language was not necessary and could undermine the independent nature of the report of the special advocate.

A motion was made to support the bill as it was written.  Upon vote by hand, this motion failed. 

A motion was then made to support the bill with the suggested language from the legislative committee concerning the need for the special advocate report to "substantially address the issues of parenting time and allocation of parental rights."  This motion passed with 19 votes yes and 2 votes no. 

House Bill 1172: This is the bill to rename the special advocate to "Child and Family Investigator" (CFI).  The bill also changes the name of the child=s legal representative to simply "legal representative."   There was discussion as to the need for updating the Chief Justice Directives if the name of the special advocate is now to be changed to CFI.  Beth Henson indicated that there is already a plan at state judicial to update and revise the Chief Justice Directives to include the new name.   There was further discussion about whether or not immunity should be extended to the CFI and the legal representative.  The recommendation of the legislative committee was that the immunity issue is another bill for another day.  The legislative committee recommended that the family law section support House Bill 1172 with some reference to the Chief Justice Directives so that there would be clarity as to what the Chief Justice Directives would cover. 

A motion was made to support the bill without the reference to the Chief Justice Directive.  This motion passed 15 yea and 5 no. 

House Bill 1171.  This bill creates the positions of "parent coordinator" and "domestic relations decision maker."  Beth Henson reported that the bill creates a three-tier system for post decree intervention.  The first level is the parent coordinator.  The second level is the domestic relations decision maker, and the third level is the existing C.R.S. 14-10-128.5 arbitrator.  The domestic relations decision maker can only be appointed by agreement of the parties and is limited to implementing the parenting plan. 

There was a motion to table the discussion of this bill by Russell Murray since Russell felt the bill needed further work.  The motion failed for lack of a second.

Further discussion concerned the issue of extending immunity to the parent coordinator and the domestic relations decision maker.  Concern was expressed that no qualifications are outlined  in the bill for a parent coordinator.  There was also concern that the bill contained some ambiguous language concerning the authority of the decision maker to "implement orders."  The recommendation of the legislative committee was to support the bill provided there is clarification of the ambiguous language concerning implementing orders, clarification of language that requires the order to be mailed to both sides and counsel, and an amendment that would allow the parties to agree to let the domestic relations decision maker testify and produce documents. 

Lengthy discussion followed concerning the title Adecision maker,@ the need for qualifications for a special advocate, and the reasons for providing immunity to the special advocate.  Steve Lass suggested that it would be helpful if the Section could approve the concept of the parent coordinator and domestic relations decision maker and then deal with the issues of immunity with the legislative sponsors.  Russell Murray made a motion to oppose the grant of immunity for parent coordinators as set forth in the draft bill.  This motion passed with 18 yes votes and 5 no votes.  The FLS does not oppose a grant of immunity for decision makers.

Steve McBride cautioned the Executive Council about narrowing our position too much.  He indicated that the legislature needs to know if we will generally support the concept and that it is better to negotiate the specific changes with the sponsors. 

Meghan Combs then made a motion that the family law section support the three tier approach as set forth in House Bill 1171.  This motion was passed with 20 yes votes and 3 no votes. 

A subsequent motion was made that the bill needs to set out the qualifications for the parent coordinator.  This motion was passed 14 yes votes and 4 no votes.

SCHOLARSHIP COMMITTEE:

John Eckelberry reported that members are being recruited for the scholarship committee.  They are unclear as to how much money is available for scholarships.  The scholarships will be for attorneys to attend the Family Law Institute.  Melissa Nicoletti reported that a CLE will often waive the tuition and charge only for materials. 

Bonnie suggested that John get more specifics on the costs as to what CLE programs the scholarship would apply and to whom it would be granted.  John indicated he would follow up on this and report back to the Executive Council in the future. 

YOUNG LAWYERS

Jennifer Feingold reported that the Young Lawyers Section is interested in doing CLEs for new attorneys in the domestic relations field. 

JUDICIAL NOMINATING PROCESS

Lesleigh and Bonnie suggested that the family law section become more active and involved with the judicial nominating commissions.  Bonnie, Lesleigh Monahan and Chuck Turner, the executive director of the CBA, met to discuss this.  Since domestic relations cases are over 50% of the cases filed, it is important that judicial nominating commissions be sensitive to the need for judges who can do this kind of work. 

GRANTS COMMITTEE: 
Fran Fontana provided a proposed policy for the grants committee and asked that the Executive Council review it prior to the next meeting. 

MEMBERSHIP SURVEY: 

Brenda Storey reported that she has drafted a membership survey.  The survey was provided to members of the Executive Council.  There was discussion about suggestions which could be included in the survey.  The consensus of the Executive Council was that the survey should be sent to the membership as drafted and that there not be a reference to a competing list serve by the Family Law Section.

There being no further business, the meeting was adjourned at 3:58 p.m.

Respectfully submitted,

Dave M. Johnson, Secretary