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Ceding Parental Authority in a Custody Case

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Cindy and John have been divorced for four years. They have three children: aged 10, 8 and 6. Cindy and John could not get along while they were married so they got divorced. Now that they are divorced, they still cannot get along, especially when it comes to making decisions for their children. There isn't a decision they can make together, whether it covers the selection of a doctor, a tutor, a camp, a school, or which soccer team to enroll their two oldest children on.

When Cindy and John got divorced they had joint legal custody, as is the norm, so they are supposed to decide things together. They either cannot or will not. As a result, over the last four years since their divorce judgment was entered, they have been to court on five different occasions because they did not agree on a decision regarding their children. Is there a better answer for them?

That question is the subject of debate. California law provides that the court can grant one parent sole decision-making authority on issues regarding children when the parents cannot agree. Sometimes that resolves the problem, sometimes it only exacerbates tension. The law does not permit a court to turn over that decision-making authority to a third party. The law does, however, allow the parents to agree to have the court appoint someone to make those decisions. This concept, which originated about twenty years ago with very limited use, seems to be getting more popular as the family courts continue to do everything they possibly can to try to discourage litigation. Parents who cannot make decisions together can hire what is referred to as a "Parenting Plan Coordinator," or PPC, to make those decisions for them. The PPC is oftentimes a retired judge or a mental health professional. The parties submit their disputed issues to the PPC, who decides what happens with the children for an hourly fee somehow apportioned between the parents. Depending on the agreement reached by the parties, some decisions made by the PPC are binding and cannot be overturned. In fact, they become court orders. Other decisions can be challenged in court by either parent, and the most significant decisions may be subject to court review before they are made into court orders.

As can be imagined, like many other things in family law, this procedure has created its own "cottage industry" of retired judges and therapists. The same issues arise when parties hire a retired judge to decide their cases: will they be impartial, or curry favor with the side represented by the lawyer who keeps referring them? Does the person being considered favor one gender over the other? Will they make decisions in an economical and fair manner, or make each decision the subject of protracted discussion and lengthy written notices of decision? Will one of the parties submit excessive disputes to the PPC, only to transfer the dispute from the public court system to the PPC? Will the other file challenges in court to the decisions made, thereby thwarting the intent of the process? While ideally the PPC procedure should be expeditious and more economical, there is always that risk. And, of course, there is always the question as to whether parents who cannot get along want to cede their decision-making authority to a third party for a set or indefinite period of time. After all, in the end these decisions are being made by complete strangers. They don't know the children they are making decisions for, only their parents do. In the final analysis, while the idea of taking away the ability to argue over decisions concerning one's children may seem tempting, parents need to think of the long-term consequences of doing so, and make sure they have done everything possible to try to work things out directly before taking this route.

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