Supreme Court to Weigh in on Courts’ Tie-Breaking Authority in Parenting Disputes

Man standing between school busses
The Colorado Supreme Court recently agreed to intervene in a “deadlocked school choice dispute” between divorced parents in order to clear up confusion about the authority of courts to act as tiebreakers when ex-spouses can’t agree on parenting decisions. / Robert Vunabandi via Unsplash

Parents often struggle with choosing the right school for their children. Divorce can complicate those decisions, and sometimes lawyers, mediators and judges have to get involved to help reach an agreement. But when parents can’t come to a compromise, can a trial court step in and make a decision for them?

A Denver-area father recently asked the Colorado Supreme Court to clarify that question in order to help resolve his family’s “deadlocked school choice dispute.” On Sept. 1, the high court agreed to review the case.

In an Aug. 25 petition for rule to show cause, Hakiowskie Flores asked the Supreme Court to clear up “lingering confusion” about the authority of trial courts to serve as tiebreakers in parental decision-making disputes. The confusion stems from two conflicting state appellate court decisions about whether courts have the authority to make a decision when parents are stuck in a stalemate. 

In the 1985 case Griffin v. Griffin, the Colorado Supreme Court concluded courts couldn’t act as a tiebreaker. But that case was decided in a time when joint decision-making agreements were presumed to be unenforceable, Flores argues, and that is no longer the law. In its 2006 decision in Marriage of Dauwe, the Court of Appeals held that trial courts can act as tiebreakers, and trial courts have followed this decision for the past 15 years, according to Flores.

“This apparent conflict creates unpredictable outcomes because parties cannot know which opinion the trial court will find controlling: a recent opinion from the intermediate appellate court, or a high court opinion from the previous century,” Flores stated in his petition. Parenting decisions are time-sensitive and often become moot while cases work their way through the traditional appeals process, Flores said, explaining why the high court should take up the case directly. He added that the Supreme Court has not addressed the issue since the 1980s and may never have a chance to do so again unless it invokes original jurisdiction.

A ‘Tug-of-War’ With No Winners

For more than a year, Flores and his ex-wife, Nicole Flores, have been engaged in a battle over which schools their three daughters should attend. The father favors the private Denver Waldorf School for at least one of the girls while the mother’s current preference is for them to attend Bear Creek K-8 in Lakewood, according to court documents.

At the time of the Flores’ divorce in 2018, their children attended Powderhorn Elementary in Littleton. Their parenting plan gives them 50/50 parenting time, although they have informally arranged for the eldest daughter to spend all or most of her time with the father. Their written agreement required them to use the mother’s address for school purposes as long as she lived within Powderhorn’s boundaries, but she moved outside the boundary soon after the divorce.

According to the father’s petition, he raised concerns about Powderhorn’s academic ratings and felt the two oldest girls should attend the Waldorf School, but the mother didn’t consent to the change. In August 2020, the father filed an emergency motion to enroll in school, but with no ruling from the court, the oldest and youngest daughters remained at Powderhorn while the middle child attended another school remotely.

A magistrate ruled on the motion in April, finding he lacked authority to resolve a decision-making dispute between the parents. On Aug. 2, a district court affirmed the magistrate, concluding that the Supreme Court’s decision in Griffin precludes judicial tie-breaking on decision-making disputes. The district court interpreted the more recent Dauwe decision as the Court of Appeals declining to disturb a lower court’s ruling, rather than an affirmative approval of judicial tie-breaking, the Flores petition states. The district court ordered Flores and his ex-wife to come to an agreement.

While the motion was making its way through the court system, a “tug-of-war” ensued between the former spouses, the father’s petition states, with each parent enrolling and unenrolling the girls in different schools and updating the address on file with the Jeffco School District. The school district took notice of the “repeated, high frequency changes” and disabled the parents’ ability to make further edits in its online enrollment system in early August, locking in the girls’ 2021-2022 enrollment at two Jeffco schools that neither parent particularly likes. 

“The only way out of this lose-lose scenario and to give the children a school choice determination made in their best interests rather than made based on geography, is a mandate from this Court confirming that trial courts do have authority to resolve disputes over major parental decisions in the children’s best interests,” the father wrote in his petition to the Supreme Court. He noted that in the 15 years since the Dauwe decision, “resolving such disputes has been a function of the domestic court system,” and the district court is “outside the mainstream” by refusing to follow that decision.

“And if the District Court’s view of the law is somehow correct, then every trial court in the state that is following Dauwe has improperly assumed a central role in resolving disputes among parents,” the petition states. “The day-to-day operations of domestic courts throughout Colorado are affected by the issue raised herein.”

In Griffin, a father filed a motion objecting to his ex-wife’s decision to send their son to a Buddhist school in Boulder. He cited an agreement with his former spouse that required the parents to jointly select the boy’s school. The Court of Appeals concluded that if a joint decision-making agreement exists and the parties are at an impasse, the parents may ask a district court to choose the school. But the Supreme Court reversed, concluding such an agreement is unenforceable as state law at the time of the couple’s divorce gave educational decision-making power to the custodial parent — in Griffin’s case, the mother. 

However, Flores’ petition notes, the law has changed since then. In 1983, Colorado enacted a law authorizing joint parental decision-making. 

Later, in Dauwe, a district court concluded courts are not prohibited from resolving disputes between joint decision-makers and intervened in a dispute between two parents who couldn’t agree on whether their children should attend therapy. The Court of Appeals upheld that ruling. 

Flores argues that “Dauwe is persuasive and should be upheld.” He asked the high court to order the district court to force the magistrate to make a choice about which school the girls should attend.

School choice and whether to homeschool have long been a source of clashes between co-parents. The pandemic has given divorced couples even more to bicker about as parents are now faced with choices about whether to have their children attend in-person or virtual school. Divorce attorneys have also seen a surge in disputes over whether children should get the COVID-19 vaccine.

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