October 2004

MINUTES

FAMILY LAW LUNCHEON

EXECUTIVE COUNCIL MEETING

OCTOBER 15, 2004

The meeting was called to order by the Chair, Bonnie Schriner.  In attendance were:  Bonnie Schriner,  Fran Fontana, Dave Johnson, Steve Lass, Martin Brown, Brenda Storey, Robert Malman, Dick Rotole, Jordan Fox, Robert Hinds, Richard Zuber, Gretchen Aultman,, Steve Epstein, Beth Henson, Katie Hays, Marie Moses, David Littman, Joan McWilliams, and Megan Combs.  Also in attendance were past chairs, Helen Shreves, Frank McGuane, Michael DiManna, Russell Murray, Gina Weitzenkorn and Barbara Quade.  Attending by phone were Bob Smith and Deb Anderson.  Visitors were Rose Mary Zapor, Sue Waters, Phil James, Judge Angela Arkin and Charlene Stratton.  Excused absences: Kathryn Beck, Terri Bernuth and Jackie St. Joan.  Absent: Mike Luchetta.

The minutes of the September 17, 2004 meeting were adopted with the correction that Martin Brown was excused from attendance. 

OFFICERS' REPORTS: 

Bonnie has additional Executive Council notebooks available for anyone who still needs one.  She apologized that the newsletter was late in going out.  There are e-mail problems at the CBA and Melissa Nicoletti is working to correct them.  The next issue will be the last printed newsletter which will be sent out unless a member specifically asks for a printed newsletter.  If no request is made, the member will only receive the e-mail version of the newsletter. 

Bonnie reminded everyone that the judge's lunch is in November and encouraged all to attend and to encourage judges in their respective districts to attend. 

Steve Lass will be heading the nominating committee for new members and officers to be elected this Spring. 

Marie Moses made a new request for articles for the Colorado Lawyer.  An article on Rule 16.2 is in the works for the January 2005 issue. 

Bonnie reminded everyone that the newsletter deadline is November 15, 2004.  Articles should be submitted to Jordan Fox or Ellen Squires.  The Section is working on having the newsletter sent out as an e-mail and not as a link to the Family Law Section web page. 

Bonnie reported that David Littman has been added to the attorney mediator dialogue and Bob Smith will be reassigned.  Beth Henson has been named as the liaison to the Other Professionals Subcommittee of the Standing Committee for Family Law Issues. 

Joan McWilliams is gathering a committee to update the Bench Book.  Joan reported that she hopes to begin work in January 2005. 

The update of the Experts Directory is being chaired by Rob Hinds. 

RULE 16.2:

Dave Johnson reported that the Rule has been approved with two minor changes.  Copies of those changes were made available to the Executive Council.  Judge Arkin clarified that the Rule has no Aopt out provision@ and wanted to make sure that everyone understood that the Rule applies to all cases. 

There was discussion as to what forms would be available from Bradford or other resources, especially the financial affidavit.  Dave reported that the office of the State Court Administrator is working on a Word document for the financial affidavit.  Dave encouraged all Council members to meet with their local benches to implement the Rule and to prepare the draft of the Case Management Order which is called for in each judicial district.  Judge Arkin reported that there will be a meeting in Douglas County on October 22 concerning the implementation of the Rule.  She asked that anyone interested in commenting provide her with any ideas prior to that date. 

Bonnie raised the issue of whether the Family Law Section should be more active in planning, so that we could be less reactive in areas such as rule changes.  Mike DiManna suggested that this task could be given to a Judicial Liaison Committee, which at this time is the Section officers.

There was general discussion as to how to coordinate with state judicial and other districts concerning the draft of the Case Management Order as well as the implementation of the other forms, i.e., mandatory disclosures, interrogatories, requests for production of documents, etc.  Martin Brown suggested that there should be no Case Management Orders and that Rule 16.2 is designed to be simple and that there should only be the Rule.  Judge Arkin noted that this would be impossible and each judicial district needs to have a Case Management Order for implementation of the Rule. She agreed that these Case Management Orders should be as consistent as possible across the districts. 

COMMITTEE REPORTS:

Marie Moses and Dick Rotole gave the legislative report.  Three bills have been sent to the Legislative Committee from the Other Professionals Committee via Gina Weitzenkorn. 

CASA has requested that the use of the term, ASpecial Advocate@ be amended to avoid confusion with CASA.  The only name that has been considered thus far is AFamily Court Neutral.@  The consensus of the Executive Council was that this terminology is confusing and should not be used.  Several recommendations were given to Gina for her to communicate to the Standing Committee, including, AChild Advocate, A @Court Visitor,@ and AChild Visitor.@  It was noted that the Chief Justice Directive concerning Special Advocates will need to be updated if a name change takes place.  It was confirmed that the Family Law Section would be involved in any selection of new name via Beth Henson, the liaison to the Other Professionals Committee and Gina Weitzenkorn.

The second bill was referred to as the, ASecond Bite Bill@ which is an amendment to C.R.S.'14-10-127  The consensus of the committee and the Executive Council was that the prior appointment of a Special Advocate should not limit the right of a party to request a full parenting evaluation under '14-10-127.  The consensus was that a Special Advocate report could be grounds to deny a supplemental evaluation.  Gina and Beth will communicate these comments to the Other Professionals Committee as well. 

The third bill was the bill defining and outlining the duties of a Aparent coordinator.@  The Legislative Committee noted that this is a first draft and that there were a number of concerns with the draft.  It was agreed that the Family Law Section would work collaboratively with the Other Professionals Committee in order to revise the draft statute as well as come up with a proposed form of order appointing a parenting coordinator.  It was recommended that a new statute be created and that this statute not be grafted onto the domestic relations arbitration statute.  It was suggested several times that this would be an opportunity to define the term, Ade novo review@ in the domestic relations statute.  Any comments on revisions to this draft legislation should be provided to Marie Moses, Dick Rotole or Beth Henson.  At this time, the Other Professionals Subcommittee is hoping to have a draft ready for the 2005 legislative session.  Bonnie Schriner noted that it would not be wise to push through a parenting coordinator bill unless it is carefully drafted and considered and discussed with the Family Law Section. 

Gina Weitzenkorn reported that several faith based groups are active in the United States concerning legislation for faith based parent coordinators, and that this political issue will not disappear. 

Dick Rotole reported on the fourth and final legislative proposal concerning an affirmative defense if a protected person under a protective order invites contact in violation of the protective order.  The Criminal Defense Bar is sponsoring this legislation. 

There was general discussion that such actions by the protected party should not result in an order vacating the permanent protective order.  Fran Fontana suggested that the Family Law Section approach the Defense Bar to incorporate that change in the statute.  Mike DiManna suggested that the Family Law Section does not need to get in the middle of a fight between the Domestic Violence Coalition and the Criminal Defense Bar at this point.  It was agreed that the Family Law Section should stand by to make comments on this bill if and when it is presented. 

Dick also reported that he anticipates that there will be legislation presented again during this coming session concerning a presumption for 50/50 parenting time and a bill to prohibit same sex adoptions. 

JUVENILE JUSTICE RULE CHANGE: 

Phil James and Rose Mary Zapor were present and discussed Phil=s letter of September 16, 2004 concerning a number of changes that are being proposed in the appellate rules as they pertain to dependency and neglect cases.  Phil=s letter outlines those changes, which are designed to speed up the appeals process when parental rights are terminated.  He reported that the Juvenile Law Section has been successful in negotiating some changes in the proposed rules that are less burdensome on parents who wish to appeal an order terminating the parental rights.  A major concern is that the contemplated rules would allow the Court of Appeals to screen out what a party may or may not appeal and would put such appeals on a fast track with little or no record.  He warned that domestic relations cases could be next in line. 

There was general discussion of the need to speed up the process for permanent placement of children while at the same time balancing the rights of parents whose rights are terminated.  There was general discussion as to whether or not a constitutional issue existed and Mr. James indicated that the constitutional issue was not a focus of the Juvenile Law Section.  Helen Shreves noted that there is a movement to abbreviate the process and curtail the rights of parties in family law cases.  She noted that this is a slippery slope and that the Family Law Section should be diligent in monitoring such changes. 

Bonnie requested that Mr. James get us any final version of the rule changes and submit them to the Legislative Committee for any quickly needed response.

FREE TELECONFERENCE SERVICES:

Melissa reported that 15 people participated in the telephone conference CLE program at the luncheon today for free.  Upon motion made and duly seconded, Council voted to permit free telephone conference participation for CLEs for out of metro FLS members for the January case law update and the May legislative update.  Subsequently Council approved free teleconferencing for non-FLS members for the January case law update, to attract new membership.

MEMBERSHIP COMMITTEE:

Brenda Storey requested that Council approve an ad in the Colorado Lawyer to inform out-of-metro members of the free teleconferencing which is being made available for the January and May luncheons.  Upon motion made and seconded, this ad was approved.

Brenda also requested approval  for an ad in the Newsletter offering a discount on Family Law Section annual membership to any new subscriber on the Steve Harhai list serve.  Steve would reciprocate and give a list discount to any new Family Law Section member.  Jordan Fox read the proposed ad copy to the Council. There was discussion concerning whether this would result in competition with the Family Law Section web site and create precedent concerning advertising in the newsletter. After general discussion, it was the consensus of the Executive Council was that we would publish a Athank you@ to Steve Harhai in the newsletter concerning the service rendered by him in creating and administering the listserv.  Brenda will work on the language for such a item in the newsletter.  The issue of discounts was deferred for discussion at a later date. 

ATTORNEY MEDIATOR DIALOGUE:

David Littman reported that the attorney mediator dialogue would be the third Friday in April and would be held in conjunction with the Family Law Section luncheon the same day.  He indicated that removal will be one of the main topics. 

David requested that the Family Law Section fund the cost of two mailings, with a cap of $1,500.  There was a general discussion concerning reimbursement to the Family Law Section from any net profits generated by the conference. 

There was general discussion that in the past the Family Law Section has been a Aco-sponsor@ and  contributed to the mailings.  However, there have been some problems with reimbursement from the conference if net profits were generated. 

This led to a discussion concerning the grant process.  Fran Fontana noted that in the past we have required other groups to fill out a grant request and submit it to the grants committee, i.e. the Family Law Institute.  The question is, if the FLS is a co-sponsor, should this be treated as a grant or a loan or simply a funding of a Section activity? 

Upon motion made and seconded, Council approved a $1,500 cap on assisting with two mailings for the attorney mediator dialogue, provided the Section is reimbursed if the conference generates net profits.  Reimbursement will be based on the pro rata contributions from the Family Law Section and the other sponsors. 

It was noted that the Family Law Section needs a written policy on this particular issue, and Fran(Great Committee Chair) was asken to propose a policy at a later date. 

Finally, David Littman reported that the CASA State Conference is coming up this month and encouraged anyone who is interested in attending to contact him.

There being no further business, the meeting was adjourned at 3:20 p.m.

Respectfully submitted,

Dave M. Johnson, Secretary