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14-10-116. Appointment in domestic relations cases - representation of childs best interests - legal representative of the child - disclosure

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(1) The court may, upon the motion of either party or upon its own motion, appoint an attorney, in good standing and licensed to practice law in the state of Colorado, to serve as the legal representative of the child, representing the best interests of the child in any domestic relations proceeding that involves allocation of parental responsibilities. In no instance may the same person serve as both the childs legal representative pursuant to this section and as the child and family investigator for the court pursuant to section 14-10-116.5. Within seven days after the appointment, the appointed person shall comply with the disclosure provisions of subsection (2.5) of this section.

(2) The legal representative of the child, appointed pursuant to subsection (1) of this section, shall represent the best interests of the minor or dependent child, as described in section 14-10-124, with respect to the childs custody, the allocation of parental responsibilities, support for the child, the childs property, parenting time, or any other issue related to the child that is identified by the legal representative of the child or the appointing court. The legal representative of the child shall actively participate in all aspects of the case involving the child, within the bounds of the law. The legal representative of the child shall comply with the provisions set forth in the Colorado rules of professional conduct and any applicable provisions set forth in chief justice directives or other practice standards established by rule or directive of the chief justice pursuant to section 13-91-105 (1)(c), C.R.S., concerning the duties or responsibilities of best interest representation in legal matters affecting children. The legal representative of the child shall not be called as a witness in the case. While the legal representative of the child shall ascertain and consider the wishes of the child, the legal representative of the child is not required to adopt the childs wishes in his or her recommendation or advocacy for the child unless such wishes serve the childs best interest as described in section 14-10-124.

 

(2.5) (a) Within seven days after his or her appointment, the appointed person shall disclose to each party, attorneys of record, and the court any familial, financial, or social relationship that the appointed person has or has had with the child, either party, the attorneys of record, or the judicial officer and, if a relationship exists, the nature of the relationship.

(b) Based on the disclosure required pursuant to paragraph (a) of this subsection (2.5), the court may, in its discretion, terminate the appointment and appoint a different person in the proceedings. A party has seven days from the date of the disclosure to object to the appointment based upon information contained in the disclosure. If a party objects to the appointment, the court shall appoint a different person or confirm the appointment within seven days after the date of the partys objection. If no party timely objects to the appointment, then the appointment is deemed confirmed.

 

(3) (a) The court shall enter an order for costs, fees, and disbursements in favor of the childs legal representative appointed pursuant to subsection (1) of this section. The order shall be made against any or all of the parties; except that, if the responsible parties are determined to be indigent, the costs, fees, and disbursements shall be borne by the state.

(b) In a proceeding for dissolution of marriage or legal separation, prior to the entry of a decree of dissolution or legal separation, the court shall not enter an order requiring the state to bear the costs, fees, or disbursements related to the appointment of a childs legal representative unless both parties are determined to be indigent after considering the combined income and assets of the parties.

(c) If the appointment of a childs legal representative occurs in a case involving unmarried parties, including those proceedings that occur after the entry of a decree for dissolution of marriage or of legal separation, the court shall make every reasonable effort to apportion costs between the parties in a manner that will minimize the costs, fees, and disbursements that shall be borne by the state.

History

History.
Source: L. 71: R&RE, p. 527, 1. C.R.S. 1963: 46-1-16. L. 73: P. 554, 8. L. 93: Entire section amended, p. 577, 8, effective July 1. L. 97: Entire section R&RE, p. 32, 1, effective July 1. L. 98: (2)(a) amended, p. 1399, 43, effective February 1, 1999. L. 2000: (1) amended, p. 1773, 3, effective July 1. L. 2005: Entire section amended, p. 958, 2, effective July 1. L. 2009: (3) amended, (SB 09-268), ch. 207, p. 941, 1, effective May 1. L. 2012: (1) amended and (2.5) added, (SB 12-056), ch. 108, p. 367, 1, effective July 1.

Annotations

Editors note: The duties of a special advocate, as formerly set out in subsection (2), were similar to the guidelines for the child and family investigator as set forth in section 14-10-116.5.

Cross references: (1) For the duty of the public defender to represent indigents, see 21-1-103 and 21-1-104.

(2) For the legislative declaration contained in the 1993 act amending this section, see section 1 of chapter 165, Session Laws of Colorado 1993. For the legislative declarations contained in the 2005 act amending this section, see sections 1 and 3 of chapter 244, Session Laws of Colorado 2005.

ANNOTATION

Law reviews. For article, The Role of Childrens Counsel in Contested Child Custody, Visitation and Support Cases, see 15 Colo. Law. 224 . For article, The Role of the Guardian ad Litem in Custody and Visitation Disputes, see 17 Colo. Law. 1301 (1988). For article, Custody Cases and the Theory of Parental Alienation Syndrome, see 20 Colo. Law. 53 (1991). For article, Final Draft of Proposed GAL Standards of Practice, see 22 Colo. Law. 1907 (1993). For article, Child Custody: The Right Choice at the Right Price, see 26 Colo. Law. 67 (Aug. 1997). For article, Division of the GAL Role in Domestic Relations Cases, see 27 Colo. Law. 45 (April 1998). For article, The Role of Guardian ad Litem: Changes in the Wind, see 27 Colo. Law. 73 (Nov. 1998). For article, Considerations Regarding the Role of the Special Advocate, see 29 Colo. Law. 107 (July 2000). For article, Special Advocates-Some Fundamentals, see 30 Colo. Law. 39 (June 2001). For article, Special Advocates-Revised Chief Judge Directive, see 30 Colo. Law. 83 (July 2001). For article, Use of the Special Advocate as Arbitrator in Domestic Relations Cases, see 31 Colo. Law. 123 (July 2002). For article, Parenting Time in Divorce, see 31 Colo. Law. 25 (Oct. 2002).

Annotators note. The following annotations include cases decided under this section as it existed prior to its 1997 repeal and reenactment.

No right to participate through chosen counsel. This section does not include a right for a child to participate in custody matters through counsel chosen by the child. In re Hartley, 886 P.2d 665 (Colo. 1994).

Relationship between an attorney and child client differs from relationship between attorney and adult client. In re Hartley, 886 P.2d 665 (Colo. 1994).

Childs attorney acts both as guardian and as advocate, since child is not competent to make legally binding decisions. In re Hartley, 886 P.2d 665 (Colo. 1994).

Imposition of higher degree of objectivity on a childs attorney. An attorney appointed to represent a child in a custody dispute must present all evidence available concerning the childs best interests. The attorneys role is not simply to parrot the childs expressed wishes. In re Barnthouse, 765 P.2d 610 (Colo. App. 1988), cert. denied, 490 U.S. 1021, 109 S. Ct. 1747, 104 L. Ed. 2d 184 (1989).

Trial court did abuse its discretion by denying a motion for appointment of a child representative to present the childs wishes regarding parenting time. A child representative cannot be called as a witness and cannot represent a childs views without question. The attorney is charged with a higher degree of objectivity than when representing an adult. In re Custody of C.J.S., 37 P.3d 479 (Colo. App. 2001).

Quasi-judicial immunity. A court appointed guardian ad litem in service of the public interest in the welfare of children is entitled to absolute quasi-judicial immunity. Short by Ossterhous v. Short, 730 F. Supp. 1307 (D. Colo. 1990).

Attorney should practice in county of childs residence. If the court, in exercise of its discretion, appointed an attorney to represent these minor children, it is obvious that in terms of client access and the mitigation of expenses, any attorney so appointed should be practicing in the county where the child is residing. Bacher v. District Court, 186 Colo. 314, 527 P.2d 56 (1974).

Trial courts apportionment of costs for childs guardian ad litem upheld where court apportioned costs between mother and father on the basis of the underemployed mothers potential income. Weber v. Wallace, 789 P.2d 427 (Colo. App. 1989).

Courts order specifying that the special advocates cost may be later assessed between the parties sufficiently preserved the issue, despite the fathers original indication in his motion for appointment of a special advocate that he would pay the special advocates initial fee. Therefore, the trial court did not abuse its discretion requiring mother to later share in that fee. In re Emerson, 77 P.3d 923 (Colo. App. 2003).

In a custody action, the attorney-client relationship with the childs mother is insufficient as a matter of law to impose a duty from the mothers attorneys to the child as if the child were a client. McGee v. Hyatt Legal Serv., Inc., 813 P.2d 754 (Colo. 1991).

Mere inability of parents to communicate is not a sufficient ground to continue the appointment of the GAL so that he may act as a mediator or facilitator for them beyond the entry of a final decree. In re Finer, 920 P.2d 325 (Colo. App. 1996).

Claim for fees by a child and family investigator (CFI) appointed by a court, which claim the parties agree was in the nature of a domestic support obligation, is discharged under 11 U.S.C. 101(14A) and 523(a)(5) because the claim was assigned to a nongovernmental third party. The CFI is not one of the enumerated parties under 11 U.S.C. 101(14A) that can assign its claim to a nongovernmental entity. In re Cordova, 439 B.R. 756 (Bankr. D. Colo. 2010).

Applied in In re Parker, 41 Colo. App. 287, 584 P.2d 103 (1978); In re Conradson, 43 Colo. App. 432, 604 P.2d 701 (1979); Deeb v. Morris, 14 B.R. 217 (D. Colo. 1981); In re Koltay, 646 P.2d 405 (Colo. App. 1982).