Court rejects argument that an order transferring judicial authority to a third-party neutral should be set aside.

April 18, 2019

Cox v. Hefley, 2019 UT App 60 (Filed April 18, 2019).

In this case, a Mother and Father signed an agreement to modify the previous orders relating to the Mother’s parent time and certain conditions the Mother would have to be in compliance with to have unsupervised visitation, and that a third party neutral would assist the parties with the Mother’s compliance. Here is the description of the involvement of the third-party neutral as articulated by the court:

” ¶4 The Stipulated Decree “entitled [the Mother] to parent-time as the parties may agree in writing.” But absent such agreement, [the Mother] would receive three days of unsupervised parent-time on alternating weeks. [The Mother’s] unsupervised parent-time was conditioned on her complying with the following terms: (1) “submit to a comprehensive psychological evaluation by a qualified licensed psychologist” and obtain a “diagnosis, a therapy/treatment plan, and a medication plan”; (2) “initiate, maintain and successfully complete all treatment recommendations, medication recommendations, and related items”; (3) not have “any criminal charges, suicide attempts, or mental health hospitalizations”; (4) “not have any illegal and/or un-prescribed drugs or medications in her home, nor allow the children to be in the presence of any person who is under the influence of any illegal drugs or un-prescribed medications”; and (5) not “permit the children to be around domestic violence.”

“¶5 [The Father] and [the Mother] agreed to hire “a different licensed psychologist . . . to act as a third party neutral and mental health professional . . . to work with the parties to ensure that [the Mother was]
following the court’s orders.” The Stipulated Decree required that the third party neutral have access to [the Mother’s] medical records and be allowed to meet with the “parties’ minor children and any other relevant party in this action, when necessary.” If [the Mother] failed to comply with the terms of the Stipulated Decree, the parties agreed that supervised parent-time would “be imposed until all appropriate treatment is recommended, complied with, completed, and the third party neutral has no safety concerns for the minor children.” The Stipulated Decree also provided, “If the parties do not comply with these terms, the third party neutral may make further restrictions to parent-time arrangements as deemed necessary.” [The Mother] agreed that she “shall not file any type of petition to modify in this case until she has successfully completed the terms and conditions stated herein, and complies with the [Vexatious Litigant Order].”

The Mother signed the agreement, but later attempted to set it aside claiming that “the Stipulated Decree “transfer[s] the court’s judicial authority to a nonqualified individual to make legal rulings without being subjected to review by the court.” The Court of Appeals disagreed and ruled:

“¶25 [The Mother] argues that the Stipulated Decree “transfer[s] the court’s judicial authority to a nonqualified individual to make legal rulings without being subjected to review by the court.” We disagree.

“¶26 Although “[t]he variety of agreements that disputing parties may reach is so vast as to defy cataloging them,” In re E.H., 2006 UT 36, ¶ 20, 137 P.3d 809, “there are certain agreements that so compromise the core responsibilities of the court that they cannot be honored,” id. ¶ 21. For example, parties may not enter an agreement that strips “the district court of its statutory charge to ensure that any custody arrangement or change of custody serves the child’s best interest.” R.B. v. L.B., 2014 UT App 270, ¶ 16, 339 P.3d 137.

¶27 Contrary to [the Mother’s] assertions, the Stipulated Decree does not allow the third party neutral to make legal rulings free of the district court’s review. In fact, it provides that the third party neutral cannot “make court orders.” As [the Father] asserts in his brief, “the third party is not . . . appointed to render an award or to resolve the case, but is there to make sure the parties comply with what they agreed to.”

“¶28 The district court approved [the Father] and [the Mother’s] agreement to condition [the Mother’s] unsupervised parent-time on her compliance with various terms. Essentially, the parties stipulated—and the court agreed—that, if certain conditions were not satisfied, then supervised parent-time would be appropriate. See Utah Code Ann. § 30-3-34.5 (LexisNexis Supp. 2018) (establishing that “a court may order supervised parent-time if the court finds evidence that the child would be subject to physical or emotional harm or child abuse . . . if left unsupervised with the non-custodial parent”). The purpose of the third party neutral is “to act as a buffer between [the Father and the Mother] . . . so that [they] do not need to pry into the personal records of the other” and “to make sure [they] are completing and in compliance with the terms of [the Stipulated Decree].” ¶29 There is nothing wrong with this arrangement. The parties entered the Stipulated Decree to settle their dispute and advance the best interest of their children. We agree with [the Father] that he and [the Mother] were free to agree on a parent-time plan that “would work for them.” See In re E.H., 2006 UT 36, ¶ 20 (noting that “the law favors the settlement of disputes”); see also Utah Code Ann. § 30-3-33(1) (“Parent-time schedules mutually agreed upon by both parents are preferable to a court-imposed solution.”). “[P]arties may plan for contingencies and develop mechanisms to assess a child’s best interest outside of the court system.” R.B., 2014 UT App 270, ¶ 16.

Cox v. Hefley, 2019 UT App 60 (Filed April 18, 2019).

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