The Colorado Supreme Court will not hear an appeal that questioned whether judges may decide where children are to attend school when their divorced parents cannot agree.
The court's dismissal of Hakiowskie Flores' petition came after a Jefferson County judge reluctantly agreed with a recent decision out of the state's Court of Appeals that found judges do, in fact, have "tie-breaking" authority.
Flores had turned to the Supreme Court after District Court Judge Randall C. Arp determined last August that he had no ability to resolve the impasse between Flores and his ex-wife over where their three daughters should attend school. Arp believed he could only intervene if the children were endangered, but Flores maintained that the judge could break the tie.
On Nov. 19, Arp reversed course and sent the case back to a magistrate to resolve the school question. Prompting the change of heart was a recent decision from the state's intermediate appeals court that determined such tie-breaking powers existed.
"[W]hen one or both of those parents are unable to responsibly discharge their duty to make a particular decision, a court is sometimes left with no alternative but to do so," wrote Judge Ted C. Tow III on Sept. 16 in the case of Marriage of Thomas.
In his subsequent eight-page order, Arp acknowledged the Court of Appeals' ruling while strenuously objecting to it. In particular, he wondered which deadlocks between parents are off-limits to judges.
"Without legislative guidance, how does the trial court determine when it is or is not appropriate to resolve a dispute?" Arp wrote. "What happens when one parent wants their child to play football, the other hockey? When one parent wants their child to participate in dance, the other in gymnastics? Is the court to pick the doctor, the dentist, and the orthodontist when the parents are unable to do so? The Thomas decision creates a slippery slope and the possibilities are endless, for there are no lengths too great to which particularly antagonistic parents may go in seeking to delegate courts as micromanagers."
Arp hypothesized that judicial tie-breaking would allow the children of divorced parents to be treated differently than those of still-married parents. For example, if married parents disagreed about which sport their child should play, it would be possible that the outcome would involve neither sport. But if one divorced parent believed the child should play hockey and the other believed in football, Arp believed a judge would need to choose one of the options.
He added that Colorado law has only given the judges explicit power to modify a parental decision-making agreement if the child's physical health or emotional development were endangered.
"Here, the General Assembly has said that legal standard is endangerment. In this case Mr. Flores neither asked for modification of decision making nor alleged (or proved) endangerment," Arp wrote. "He merely asked the court to select the school, arguing his choice was in the best interest of his eldest child."
The Supreme Court officially dismissed Flores' appeal on Dec. 21. The petition indicated that Jeffco Public Schools had effectively served as the tie-breaker for Flores' daughters by locking in the children's school enrollment for the 2021-2022 school year after the parents could not agree.
While the Court of Appeals' Thomas decision set a precedent for trial judges to follow, the absence of a Supreme Court ruling leaves open the possibility that the appellate court could reach a different conclusion in a future case.
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January 05, 2022 at 07:00PM
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State Supreme Court drops case over parental deadlock in school choice - coloradopolitics.com
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