MANAGING HIGH CONFLICT CHILD CUSTODY CASES
COURT RESPONSES TO PARENT COORDINATOR AND DOMESTIC CASE MANAGEMENT
By Ronald W. Nelson
Overland Park, Kansas
*Previously published as part of materials presented at the American Bar Association Family Law Section Spring, 2000 conference at New Orleans, Louisiana in April, 2000. (c) copyright 2000 ABA FLS
One of the most emotional and highly charged areas of domestic relations practice involves child custody and visitation disputes. Parents often become emotional when faced with the loss of ongoing contact with their children. In some situations, however, conflict between parents regarding parent-child contact rises to such a level that it becomes an all-consuming battle over every aspect of parent-child contact. Instead of negotiating on a day-to-day basis for the best interests of the child, arguments between separated parents arise about major and minor concerns – whether it be the religious doctrines to which the child is to be exposed or the level of the child’s involvement in extra-curricular activities. Instead of respecting the other parent’s relationship with the child, every contact provides another opportunity to show the world what a bad parent is the other parent.
The problem was highlighted in a study completed in 1990:
Each year approximately 2.5 million people divorce, subjecting more than 1 million children to the losses of familial breakup. Hostility in families can be greatly exacerbated by parents’ repeated failure to negotiate an altered lifestyle for the family which provides for the children’s best interests. Interventions with highly conflictual parents and their children must necessarily address the interface between the mental health and legal professions. How families experience this process must be carefully studied in order to create new strategies for change, not only within the families, but also to facilitate the legals system’s cooperation with mental health professionals.[i]
This is the “high conflict” custody case. In 1980 Wallerstein and Kelly reported that approximately thirty percent of divorcing couples with children have serious inter-parental conflict for between three to five years after their divorce is finalized.[ii]As noted in one study the result is that:
“These families consume substantial time in the courts, with mental health professionals, and in other social and educational institutions within the community. It is these families that family court judges are frequently called on to actively make decisions on behalf of the children because parents are unable to disengage from conflicted interaction with each other.”, and many studies have shown how destructive such situations are to the children involved.”[iii]
The problems in these cases is further complicated by the fact that the legal principle almost uniformly applied by courts to their determination of child custody matters is the “best interests of the child” standard, a principle that almost every commentator acknowledges results in a high level of uncertainty and, often-times, increased animosity between the parents seeking a definition of their respective parenting roles.[iv] The uncertainty in the legal principle to be applied is further complicated by the fact that each of the various states has its own way in which that principle has historically been applied, and the fact that a principle as amorphous as the “best interests” standard necessarily depends on the knowledge, abilities and interests of the judge to whom the case is assigned. As was noted in an article on the especially difficult area of parental relocation:
Any analysis of the best interests of children is approached based on assumptions about the needs of the children emotionally and psychologically. Judges may rely upon a variety of sources for their assumptions. Some may be based on life experiences – as parents, as sons or daughters, as people who have come into contact with perhaps hundreds of divorced families in court. The judicial system assumes that judges (as with jurors in jury cases) are able to rely upon their common sense and experience, developed through many years of daily living and general education, in deciding issues involved in a lawsuit. However, those experiences are just as easily to be atypical as typical. What a judge may learn from the divorcing families who have contested cases may not be applicable to other divorcing families. Yet, we want to have good information about how the individual cases we deal with may fit into the larger picture, along with any information that might suggest ways to assist the families involved in individual cases.[v]
Given such an undefined standard and the fact that the persons charged with these decisions have their own vastly different view of how to apply those principles, there are concerns about the ability of the courts to resolve issues of child custody and parenting time in an objectively fair and appropriate manner.
At the same time the opposite issue is raised about the appropriateness of leaving to judges (who are most often trained in adversarial processes and the application of objective principles of economic responsibility and financial liability) issues of an inherently subjective character when those issues are wrought with so many subjective results and psychological ramifications and interactions.[vi]
Adding to these general concerns is the fact that the courts have, in recently years, been inundated with ever burgeoning case loads in all types of litigation, but especially in domestic relations filings with an accompanying increase in filings of cases in which children are involved.[vii] To this increasing case load has been added other complications to deciding these cases, such as the increasing mobility of society, the de-emphasis or abolition of clear-cut rules of decision such as the “tender years” and the “maternal preference” doctrines and the increasingly active involvement of parents in their child’s lives[viii] have led to an ever increasing number of emotionally draining and hotly contested child custody disputes.
With these increasing case loads and increasing numbers of high conflict custody cases, the courts have sought new ways to deal with these emotional cases and by trying to find other avenues to cumbersome court procedures and solutions sometimes ill-suited for the kind of emotional and psychological involvement seen in the high-conflict case. At the same time professionals from different disciplines dealing with the fallout from conflicted child custody cases have become increasingly interested in trying to find ways in which to deal with these “high conflict” child custody cases.[ix]
In the past, courts have attempted to control these situations by dividing residential care between parents in such a way that there is limited contact between the parents, limiting access to the child when in the other parent’s care, or the complete denial of any access by a parent in some cases in which the Court deemed the conflict so severe that it was believed to be the only “sufficient” way to control adverse impact on the children. These methods have, however, proven insufficient, either because they burden the courts by requiring that the courts continuously address the conflicted case through motions filed to bring matters before the court, or because the means used by the trial courts to limit contact between parents has proven too restrictive to pass muster with the state’s appellate courts.[x]
Some have suggested that child custody cases be removed completely from the purview of the courts.[xi] Others have suggested that states create specialized family courts staffed by judges with special interest and training in the needs of domestic relations cases, or even more specialized custody courts. Still others have suggested that the courts require mediation or other alternate dispute procedures and institute a system to identify potentially high conflict cases early in the process so that special services and processes can be used to head off problems.[xii]
Courts have also attempted to work within the existing framework of civil rules and marital counseling statutes to provide for various means of alternate dispute resolution in these highly charged cases. While restriction of access and creative divisions of custody may be deemed sufficient in some cases, in those cases in which there is no direct danger to the child manifested by past incidents of child or spousal abuse, or where the “high conflict” is exhibited in continuous contentions that the other parent engages in activities that minimally interfere in the time a parent spends with the child, or where the parents dispute is in being able to deal with the ongoing give and take of parenting a child separately, some state’s courts and legislatures have determined that the situation may be improved by enlisting an extra-judicial agent to work with the parents, children, attorneys and other professionals in trying to assist these “high conflict” parents to a point where, hopefully, they are able to function in a less confrontational and conflicted manner in interactions regarding their child.
To this end, many courts have required that parents submit any disputes regarding custody or visitation to a neutral mediator prior to bringing the issue to court for ultimate resolution.[xiii] These methods of dispute resolution have also not been successful, however, primarily because parents involved in the high-conflict case tend to be primarily interested in either defending that parent’s own rights or causing the other parent ongoing difficulties rather than in coming to a resolution of the dispute that will create some stability for their child.[xiv]
Because these more traditional ways of dealing with high conflict cases have not worked, some courts have turned to some of the extra-judicial methods of controlling the psychological and emotional interactions of the parents involved suggested by the various professionals who have sought ways to control these cases — what have variously been termed “parent coordinators,” “special masters,” “wise-persons,” “custody commissioners,” “coparenting counselors,” or “domestic case managers.”[xv]Because agreement on alternate dispute resolution methods in “high conflict” cases is almost impossible by definition, implementation of the conflict reduction processes is dependent on the courts.
Under any of these “case management” procedures, some person experienced in child custody matters and trained in dispute resolution techniques is given authority to hear and mediate disputes between the parents regarding their parenting relationship and make recommendations or arbitration decisions in the event of an impasse. This process is usually not a confidential process, but entails some kind of reporting system to inform the court of disputes, agreements and recommendations arising out of the case management sessions. As explained by one authority, there are typically two “coparenting arbitration” models:
In the first, the coparenting arbitrator is called on to arbitrate only when the parents cannot settle a specific dispute. He or she acts solely as an arbitrator and does not perform counseling or therapeutic functions for the family. In many of these families, which are often identified by the extremity of their conflict and multiprofessional involvement, a child therapist or a confidential mediator is working with the family in an ongoing way. These other professionals or the parents themselves call in the coparenting arbitrator when a specific matter cannot be resolved. The advantage of this model is that arbitrators have a distinctly separate role from the other professionals. They are a private, neutral “court of appeal” who, over time, can develop a great deal of in-depth knowledge about the family and the trust of its members. The disadvantage is that it is more costly and cumbersome to add yet another professional layer to the family system.
In the second model, coparenting coordinators act as the parenting counselor, mediator, or child therapist in an ongoing way and exercise their right to arbitrate only when parents fail to agree on a specific matter. A variation of this theme is where the existing professionals in a case (e.g. therapists, mediators, special eduction teacher) form anarbitration panel and render a consensual decision on specific issues, whenever parents reach a stalemate. Whereas this second model may be more economical, role confusion, boundary questions, and ethical problems arise whenever professionals shift their primary function.[xvi]
The courts that have explored using parent coordinators have forged various methods by which the third party parent coordinator is assigned authority to deal with the high-conflict case: (1) Ad hoc orders by individual courts without an existing framework of rules; (2) local court rule; and (3) state statute.
Ad Hoc System of Case Management . The most common method presently used for appointment of parent coordinators is a system of ad hoc orders issued by individual judges requiring parents involved in high conflict custody cases to participate in programs set up to reduce the conflict. Under this ad hoc method, a judge will refer high conflict cases to an outside entity or individual for intense mediation, arbitration or education regarding ways of resolving ongoing disputes. Judges in San Diego County, California, for example, have referred cases to a High Conflict Intervention Program in which mental health professionals work with parents to educate them in methods and practices by which the pattern of conflict is broken and parents can learn how to effectively deal with attempts by the other parent to draw them into continuing conflict.[xvii]
Various courts in Colorado and other states[xviii], on the other hand, have appointed attorneys and mental health professionals as special masters, special child advocates, case managers or guardians ad litem in an attempt to imbue on those professionals court authority to resolve ongoing conflict.[xix]
Although the authority under which many of these orders are made is unclear, judges may make such referrals under existing statutes or court rules authorizing parent or marital counseling, parenting education programs, appointment of arbitrators, psychological testing and evaluation, appointment of guardians ad litem, special child advocates, or special masters.
Local Court Rule. Other courts have created a more formalized method of Case Management. Under this second manner of dealing with the high conflict case, a court adopts an administrative rule providing the basis upon which a neutral parenting coordinator may be appointed. For example, the Twenty-Sixth Judicial District inNorth Carolina provides by local court rule that a “parent coordinator” may be appointed at the completion of a custody trial, after acceptance by the court of an agreed parenting agreement or, in exceptional cases, at an early stage of litigation involving children. The “general functions” of the parent coordinators are defined[xx]and the parent coordinator is given specific authority to participate in all aspects of the case. While the Parent Coordinator is charged with attempting to mediate disputes between the parents, if an impasse between the parents is reached on a matter not specifically governed by a court order, the decision of the Parent Coordinator prevails until the matter is reviewed by the court on request of either party or the Parent Coordinator.[xxi]
On the other hand, at least two courts in California have passed local rules giving parent coordinator authority to “special masters.” The Santa Clara County Superior Courts provide that a special master may be appointed for any purpose provided by law including, but not limited to: “making recommendations to the Court concerning factual issues, reviewing the Court’s file, conducting settlement conferences with the parties and their respective counsel for the purpose of attempting to reach a settlement of the cause, and hearing all discovery matters/disputes.”[xxii] The rule provides that a special master may be either an attorney, commissioner, referee, retired judge, accountant, therapist, relator, or any combination of them or such other person(s) the Court may appoint.[xxiii] Although applicable to high conflict child custody cases, the rule is clearly not drafted with high conflict child custody cases as a primary focus of those situations to be addressed.
The Marin County, California Superior Court, however, has a rule that appears to have been drafted with high conflict cases specifically in mind.[xxiv] This rule provides that a special master appointed under the rule shall prepare and forward to the Court a written report including any recommendations and factual basis therefore, on matters regarding issues pertaining to the minor children. Notably, the rule provides that such a special master may only be appointed by stipulation and that “[s]hould either party refuse to agree to appointment of a Special Master, a Special Master will not be appointed.”[xxv] The rule also specifically limits the authority of the Special Master by providing that:
No Special Master will have authority to make orders on subjects which are, by law, reserved to the Court for adjudication, such as substantial changes in time sharing arrangements, an award of physical custody, an award of legal custody, or orders which substantially interfere with a party’s contact with his/her children.[xxvi]
Statutory Enactment. Only one State has enacted a statute authorizing the use of “case managers.” Kansas statutes provide that a court may appoint a case manager in domestic relations cases in which there have been repeated motions filed before the court regarding issues of custody or visitation.[xxvii] The expressed intent of the statute is to “provide a procedure, other than mediation, which facilitates negotiation of a plan for child custody or visitation” and in which the case manager has authority to report to the court any recommendations in the event the parties are unable to reach agreement.[xxviii] Although there are no appellate decisions applying the statute,Kansas trial courts have used this statute to engage third party case managers in high-conflict cases as “super mediators” with the power not only to seek compromise between the parents, but also to make final decisions regarding issues small and large.
Legal Concerns Regarding Case Managers.
Although some courts believe they have an inherent ability to appoint extra-judicial experts, such as a “case manager” power to assist in determinations of child custody, some appellate courts have been circumspect on the authority for such appointments. For example, the New Mexico Court of Appeals remanded a case to “reassess the scope of authority” of the case manager noting that “we are unable to ascertain from statute or local rule the definition of or authority for appointment of a ‘case manager.’”[xxix]
Notwithstanding the need for some new approach to these highly conflicted cases, many concerns have been raised about the efficacy and appropriateness of courts using parent coordinators empowered to break deadlocks between fighting parents by imposing the parent coordinator’s own determination of how the dispute should be resolved. Among the concerns brought forward has been a concern about the qualifications of persons appointed, the background and training required, the ethics rules applicable to the parent coordinator,[xxx] concerns about conflict of interest and bias,[xxxi] a concern that the powers of the parent coordinator be neither too narrowly defined nor too broadly described, a need to know the basis on which decisions of the parent coordinator are based, and, perhaps most importantly, a due process concern about what remedies are available when a parent does not like a decision of the parenting coordinator.
One of the problems with courts assigning their decisional powers to an extra-judicial agent is highlighted by the Colorado Court of Appeals case of In re Marriage of Elmer.[xxxii] In that case, orders were entered by the trial court temporarily postponing the father’s rights to overnight visitation of his daughter on advice of the child’s psychiatrist. Because the trial court was unsure of the progress that would be made in counseling, however, the court directed that the child’s psychologist would have the authority to determine when and if overnight visitations may occur. In finding that the trial court had improperly delegated its authority, the Colorado Court stated:
Here, the testimony of the child’s psychologist supported the temporary postponement of overnight visits until the summer of 1996. However, we know of no authority that would authorize the trial court to defer indefinitely the decision for exercise of overnight visitation and to delegate that decision to the child’s psychiatrist.
The record here shows that the husband agreed to involvement of the guardian ad litem, but he did not agree to deferral of any decision-making autority to the psychiatrist. And, in our view, the trial court’s finding that pushing the child into overnight visitation too soon would result in long-lasting psychological damage to the child does not support the order granting the psychiatrist the authority to determine when, and if, overnight visitation is in the best interests of the child.[xxxiii]
Similarly, in In re Marriage of McNamara[xxxiv] the trial court granted an appointed guardian ad litem the power to modify the parenting time schedule without need of the parties to return to court. In finding that such a delegation was improper, the Court of Appeals stated:
[Under the laws of Colorado] a parent not granted custody of the child is entitled to reasonable parenting time rights unless the court finds, after a hearing, that parenting time would endanger the child’s physical health or significantly impair a child’s emotional development. Hence, the statutory scheme requires the trial court itself to make decisions regarding parenting time, and it may not delegate this decisional function to third parties. Hence, we conclude that this delegation of authority to modify parenting time was error.[xxxv]
The problems regarding delegation of judicial authority were highlighted inDonovan v. in which the Court stated:
Although the court upheld the order in Chantal S., it implicitly recognized that an order may be improper for delegating judicial authority to a private therapist. This is consistent with findings of improper delegations of judicial authority to private individuals in other contexts, and with the prohibition in the California Constitution against delegation of duties other than subordinate judicial duties. (See Cal.Const., art. VI, § 22; De Guere v. Universal City Studios, Inc. (1997) 56 Cal. App. 4th 482, 496 [“The California Constitution, article VI, section 22, prohibits the delegation of judicial power except for the performance of subordinate judicial duties.”]; In re Edgar M. (1975) 14 Cal. 3d 727, 735, 537 P.2d 406, 122 Cal. Rptr. 574 [without judicial review, referee’s finding juvenile ward of the court would constitute unlawful delegation.].)
The order in our case differs significantly from the order reviewed in Chantal S. The order before us states that Father has “no visitation rights without permission of minors’ therapists.” It neither requires that the therapists manage visitation ordered by the court, nor sets criteria (such as satisfactory progress) to inform the therapists when visitation is appropriate. Instead it conditions visitation on the children’s therapists’ sole discretion. Under this order, the therapists, not the court, have unlimited discretion to decide whether visitation is appropriate. That is an improper delegation of judicial power. Although a court may base its determination of the appropriateness of visitation on input from therapists, it is the court’s duty to make the actual determination.
We could speculate that the court intended to allow visitation only when father had made progress in his therapy or that it intended visitation to begin only when the children no longer exhibit regressive behavior when told of upcoming visits. The problem is that the order is open to numerous interpretations and thereby fails to provide the therapists with any guidelines for “facilitating” the visitation.[xxxvi]
Even when the appellate courts have approved the appointment of special masters by trial courts to assist in the determination of issues the appellate courts have been cautious of the procedures used by the trial courts in following the recommendations made by those masters. For example, although not a domestic relations case, in Digiacobbe vs. Sestak, the Delaware Supreme Court held that though “judges in the Court of Chancery have both inherent and statutory power to refer any matter within the court’s jurisdiction to a master [and they] may delegate to a master full authority to address all issues in controversy from the outset of the case through post-trial submissions[,] [t]he master is not a judge. . . , so the master’s rulings and report are not final until they have been reviewed and adopted by a judge. Timely objections to the master’s findings and conclusions must be reviewed de novo by the judge and, for a review of the evidence to be meaningful, there must be a transcript of the proceedings before the master.” Since the trial judge could not undertake such a review in the Digiacobbe case because there was no transcript, the Deleware Supreme Court vacated the lower court deicion and remanded the case “for further consideration of the master’s report after the record has been transcribed.”
As courts seek out ways to deal with highly conflicted families and try to control their over-crowded dockets, it is probable they will increasingly turn to extra-judicial means of managing these disputes. Case management through parent coordinators may have some advantages to the traditional way of dealing with high conflict custody cases.
The challenge to the legal profession will be to work for better management of these situations with an eye toward reducing conflict and making better lives for the children affected by these disputes while preserving the due process rights of the parents involved.
[i] V.A.Simons, L.S. Grossman & B.J. Weiner, A Study of Families in High-Conflict Custody Disputes: Effects of Psychiatric Evaluation, Bull.Amer.Acad.Psychiatry & the Law, 18(1): 85-97 (1990).
[ii] J.Wallerstein & J.Kelly, Surviving the Breakup: How Children and Parents Cope with Divorce (New York: Basic Books 1980).
[iii] C.Ayoub, R.Deutsch, & A.Maraganore, Emotional Distress in Children of High-Conflict Divorce, 37 Fam.Conc.Cts.Rev. at 297 (1999).
[iv] See e.g. R.Mnookin and L. Kornhauser, Bargaining in the Shawdow of the Law: The Case of Divorce, 88 Yale L.J. 950, 956 (1979).
[v] S.Leben & M.Moriarity, A Kansas Approach to Custodial Parent Move-Away Cases, 37 Washburn L.J. 497, 512 (1998).
[vi] See Legal and Mental Helath Perspectives on Child Custody Law: A Deskbook for Judges, at 14-15 (West 1998); N.Dembitz, Beyond Any Disciplines Competence, 83 Yale L.J. 1304, 1310 (1974).
[vii] Numerous articles have been written in the popular press about the litigation “explosion” and the divorce “crisis.” See e.g.
[viii] See e.g. K.Pruett, How Men and Children Affect Each Other’s Development, Zero to Three (August/September, 1997).
[ix] See e.g. C.Garrity and M. Baris, Caught in the middle: Protecting children of high-conflict divorce (Jossey-Boss 1994); J.Johnston and V.Roseby, In the Name of the Child, Chapter 9 (Building Multidisciplinary Parnterships with the Court) (Free Press 1997)
[x] See e.g. In re Marriage of Sokol, No. 98-80476 (Kan.Ct.Appls., unpublished slip op. 12/24/1999)(Trial court abused its discretion in cutting off parent child contact without finding that contact would harm child’s physical, mental or emotional health).
[xi] See e.g. Mnookin, Child-Custody Adjudication: Judicial Functions in the Face of Indeterminacy, 39 Law & Contemporary Problems, Summer 1975, at 226, 289-91.
[xii] See e.g. A.Schepard, Taking Children Seriously: Promoting Cooperative Custody After Divorce, 64 Tex.L.Rev. 726 (1985).
[xiii] See e.g. Santa Clara County, California Superior Court Local Rule ___ http://www.sccsuperiorcourt.org/departments/familyct/Universal/rules/ ; Johnson County, Kansas Dist.Ct.Rule 22 <http://www.jocoks.com/jococourts/local_civ22.htm>.
[xiv] Garrity and Baris have noted that: “People displaying certain defensive styles are especially likely to be caught up in divorce impasse. These high-risk individuals share (1) an unwillingness or inability to experience the loss and rejection that are part of divorce and (2) a predisposition to project onto others the blame for the family breakup.” (Caught in the Middle, at 111)
[xv] See J.Johnston and V.Roseby, In the Name of the Child, at 243-245 (New York: Free Press 1998)Among the first to suggest the concept of the “parent coordinator” were Garrity and Barris in C.Garrity & M.Buris, Caught in the Middle: Protecting the Children of High-Conflict Divorce (Jossey-Bass 1994).
[xvi] J.Johnston & V.Roseby, In the Name of the Child, at 244 (New York: Free Press 1997).
[xvii] See materials of the San Diego “High Conflict Intervention Program” at <http://www.teamworksdivorce.com/download.htm>.
[xviii] Vermont courts have experimented with case managers by individual court order. See also Czarnecki v. Czarnecki, No. 97-0630 (Wis.App.Dist.I, unpublished slip op. 12/01/1998)(Claim of error in trial court’s appointment of case manager to monitor exchanges of the children ruled moot).
[xix] Unpublished paper presented to the Colorado chapter of the American Academy of Matrimonial Lawyers by Stanley G. Lipkin in December, 1998.
[xx] Rule 4B.3 of the Domestic Relations Calendaring Rules of the 26th Judicial District (North Carolina), provide that “[t]he general functions of the Parent Coordinator are as follows: a. assist parents in implementing Custody/Visitation Court Order on an ongoing basis; b. reduce conflict between parents; c. teach parents communication skills, child development and children’s issues in divorce; d. ensure that both parents maintain ongoing relationships with the children; e. provide attorneys and any unrepresented party with written summaries of developments in the case as the Parent Coordinator deems necessary; f. act as a temporary decision maker in the implementation of the parenting plan on any issue not specifically governed by the court order over which the parents reach an impasse, until further order; and g. empower the parents to successfully resolve conflicts over their children on their own.” http://www.aoc.state.nc.us/data/MECKLENBURG/98domest.html#R.4B.. See appendix.
[xxi] Rule 4B.7 of the Domestic Relations Calendaring Rules of the 26th Judicial District (North Carolina).
[xxii] Santa Clara County, California Local Rule 3.1, Section 7.3 <http://www.sccsuperiorcourt.org/departments/familyct/Universal/rules/section7.htm#FAMILY LAW SPECIAL MASTERS> (See appendix).
[xxiv] Marin County, California Superior Court Local Rule 6.42 http://www.marin2.marin.org/mc/courts/rules/fam99.htm. (see appendix).
[xxvii] Kan.Stat.Ann. 23-1002 (1999 Supp.) (see appendix)
[xxviii] Kan.Stat.Ann. 23-1001 (1999 Supp.).
[xxix] Khalsa vs. Levinson, – N.M. – (1998).
[xxx] S.M.Lee, Acting as a Special Master in High Conflict Post-Divorce Child Custody Cases: How to be a Mediator, Therapist and Judge in an Ethical and Legal Manner, unpublished paper presented at seminar titled: “New Ways of Helping Children & Parents Through Divorce, November 20-22, 1998 by the Judith Wallerstein Center for the Family in Transition.
[xxxi] See P.Stahl, The Use of Special Masters in High Conflict Divorces, California Psychologist, April, 1995.
[xxxii] In re Marriage of Elmer, 936 P.2d 617 (Colo.Ct.Appls. 1997).
[xxxiv] 962 P.2d 330 (Co.Ct.Appls. 1998).
[xxxv] Id., at 332.
[xxxvi] In Re Donnovan and Jazzalynn vs. Roy L., 58 Cal.App.4th 1474, 68 Cal.Rptr.2d 714 (1997).