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Special Masters:
One Way to Deal With
Difficult, Chronic Post-Divorce Conflict
©Vicky Campagna, Ph.D.
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article, click here
Every
family law attorney, family law evaluator and child custody evaluator
knows who they are. They're that one couple in ten who just can't seem
to get past chronic conflict, even when the divorce is history.
Bickering continues ad infinitum; it seems that no matter what the
issue, contentious disagreement reigns. "If she says it's Wednesday, you
can be sure he'll argue that it's Thursday," said one frustrated family
law attorney regarding a couple with whom he was working.
These are the couples who are constantly
re-litigating, spending untold amounts of money to challenge each other
on every possible issue, all the while most likely wreaking havoc on
their children's adjustment to the parental split. (It is a
well-accepted finding that the best predictor of post-divorce adjustment
for children is the amount of conflict that continues between their
parents. Estimates are that children who must live with parental
post-divorce battles are 4 to 5 times more likely to have significant
emotional and/or behavioral problems.) They consume the lion’s portion
of the Family Law Court’s time as well.
Special Masters: An Alternative Solution That Goes By
Many Names
But in
more and more jurisdictions, there is an alternative, i.e. the
appointment of an expert to help families successfully navigate the
shoals of post-divorce life and to provide the Court with the kind of
in-depth information it needs to make the best decisions for those
issues that can be handled no other way besides litigation. Known by
various names (examples are Special Master in California, Wise Persons
in New Mexico, Custody Commissioner in Hawaii, Co-parenting Coordinator
in Colorado and Parenting Coordinator in other areas), these folks are
court-appointed experts. Both parents agree that these experts
will investigate any or all of a wide variety of post-divorce conflict
areas and report to the Court their findings and recommendations on how
the situation would best be handled.
For the
most part, they are mental health professionals, at least when the major
sources of the conflict are child custody issues. Attorneys are more
often appointed when the main arguments center around property division
or other primarily legal matters. Their methods and scope of operation
vary by local rule although all are dependent on statute enacted by the
legislature. In most jurisdictions, parents may specify which issues
fall under the Special Master's authority, and retain the right to
continue to argue and even litigate over those remaining (and/or
eliminate areas where they have no disagreement).
Dr. Janet Johnston, well-known expert in divorce issues, believes
that "interdisciplinary partnerships" are vital in these cases: she
feels it is not reasonable to expect the Court to "have some special
capacity to resolve the most difficult, the most complex of family
problems....the role of the family court should be one of leadership in
bringing the issues , the parties, and their helpers to the table."
According to former Family Law Commissioner George Taylor, who had many
years experience dealing with post-divorce cases, "Jurisprudence is
rooted in the adversarial model of ‘the truth will eventually come out.’
In other areas of law, litigation is ‘event-driven’, that is, something
happens (such as someone hitting your car), and you ask ‘what are the
damages?’ But in family law, you have the overlay of emotions concurrent
with the event. And the adversarial approach only intensifies the
conflict, it does not reduce it. This is why family law is better served
by a multidisciplinary approach."
An
Example of How a Special Master Works
Let's say the parents are arguing about how to transport Junior to and
from visits to the non-custodial parents. Discussions between them have
resulted only in further arguments and increased tension, all of which
cannot help but harm the children emotionally. If this were a case that
had a Special Master assigned to it (and this issue was one of those
that had been agreed to be covered), the parents would call the Special
Master. Each would express his or her position or they all may meet
together to discuss the problem at the Special Master's office. The
Master will be very familiar with the case and be in a good position to
ferret out any underlying issues (for example, maybe Mom is resisting
dropping Junior off because she knows Dad's new girlfriend is there, and
she resents her). Methods of conflict resolution will vary from Master
to Master and case to case. Most likely, the Special Master will attempt
to help the parents come to a mutually satisfactory resolution; but if
that fails, the Master has the parents' previously stipulated agreement
that he/she will make a recommendation to the Court regarding the
unresolved matter at hand. For instance, the Master may find that the
parents meet to exchange Junior at a specified neutral location such as
a nearby park, thus defusing this emotional hot button. The Master's
finding is issued as a written recommendation to the Court but it has
the full force of a temporary Court order; the parents have two weeks to
object; if they do not object, the Court is highly likely to issue the
order containing the recommendations.
In California, the Special Master concept began as a variant of
alternative dispute resolution. Although no exact count is known, some
variation of the Special Master exists in numerous jurisdictions, albeit
(as has been noted) with variations.
Special
Master Benefits
The advantages of having a Special Master involved are
many:
Speedier
access: Instead of waiting for an opening on the Court is often
over-crowded calendar, the parties can call their Master as easily as
they can reach any other professional. The Master can respond as
expeditiously.
Avoidance
of Litigation: In addition to its costs, litigation is not only very costly, but
also tremendously draining emotionally for all concerned. With a Special
Master in place, parents can quickly meet in a low-key setting and feel
as though their positions are thoroughly understood.
Relevant
Expertise: The Special Master's mental health training and understanding of
family dynamics is of great value for families in this sort of upheaval.
Further, the Master usually has an appointment for a significant length
of time (anywhere from a few months to indefinitely; the average in
California is one to two years) and thus, has the opportunity to really
get to know the individuals involved and the history behind the
important issues. Contrast this position with that of a judge who may
have only 15 minutes to review a thick file, or with attorneys, each of
whom is sworn to advocate for his or her client's interests. (It should
be noted that the limited term gives both the Master and the parents an
opportunity to terminate the relationship gracefully; if it is working
well, it may be renewed.)
Lower Cost: Special Master costs are generally far less than that of an
attorney and/or litigation, and the Special Master cost is generally
divided between the parties. As an example, let’s say parents each
have an attorney who charges $250 an hour. If they find themselves at
odds, they will each pay $250 an hour plus filing fees (a total
that can easily reach thousands of dollars) or they can meet with
their Special Master and split the Master’s fee (which will vary,
depending on location).
Opportunity for Personal Growth: Parents may ultimately gain a more pragmatic perspective
regarding the realities of being a post-divorce parent. For instance,
Mom may think Junior should be in bed on school nights by 8 p.m. without
exception, whereas Dad is more willing to be flexible and allow an
occasional late night. After a few instances of bringing this issue to
the Master's attention, and having the Master, (who is perceived as a
trained expert in these things) point out that Junior's grades and
health have remained fine, Mom may more easily come to see value in
Dad's more relaxed approach, and that in any case, Dad is entitled to
parent as he chooses during his time with Junior as long as Junior's
health and well-being are not endangered. Mom may be more willing to
lighten up a bit. The Master will probably point out that post-divorce
parenting is not just another way to mutually parent; it is two people
acting as separate entities when each is in charge. (It must be
admitted, however, that this sort of parental epiphany rarely occurs.
Using a Special Master certainly does not itself make the conflict
disappear; it simply is a way of coming to a resolution that avoids
major expense, hostile parental interaction an over-use of the Court.)
Nuts and Bolts
of Using A Special Master
The usual procedure in most jurisdictions is for both
parents to sign a stipulation agreeing to the appointment of a specific
Special Master. The stipulation outlines the limits of the Master's
powers and the duration of the appointment. Then the judge approves the
order and the Special Master is in place. The Master will have his/her
own separate contract with the parents, spelling out what is expected
and what procedures will be followed for things such as after-hours
problems, etc. It is really a very simple process. In California the
Special Master is also given limited quasi-judicial immunity, since they
are acting under the umbrella of the court.
Sometimes, the Court may decide that it requires more
in-depth information about a specific topic and on its own, appoint a
Master to investigate a particular issue and report back to the Court.
In both cases, the Master acts in an advisory capacity but his or her
recommendations are taken very seriously by the Court.
Most Special Masters ask for at least a $1,000
retainer, half paid by each parent. As fees are incurred, hourly charges
per hour (billed at 1/2 against each parent’s individual retainer) are
deducted. When the retainer dips below a specified level, each parent
replenishes it. It is important to note that both parents are charged
for any services, not only the parent who brought the issue to the
Master's attention. This practice reinforces the idea that this is a
joint endeavor that the issue at hand is to be dealt with by both
parents.
Dr. Phil Stahl, an experienced Master and custody
evaluator (and author of two books on custody evaluations) contends that
the first order of business is for the Master to develop a bond of trust
between Master and parents. This is a task which is inhibited by the
feeling of many parents that the Court system has not been responsive to
their needs. Stahl recommends an individual, face-to-face meeting with
each parent where the parent has the opportunity to express his/her
feelings and where the Master can reiterate that all decisions made will
be in the best interests of the children, not in the interests of the
parents. The Master should stress that decisions will be made
expeditiously. Stahl points out that the conflict between the parents is
roughly analogous to siblings fighting over their parents’ attention.
Just as they have difficulty sharing their parents, so do the parents
have trouble sharing the children. Stahl suggests a process for the
Special Master to make decisions:
1) Look to the Court order for a precedent; if there is no clear
guideline, then
2) examine how the issue affects the children; if there is no clear
effect, then decide on basis of fairness to parents, alternating between
them and in all cases, keeping well-documented records.
Dr. Matthew Sullivan, another highly experienced Master
and custody evaluator, urges "a neutral, child-focused stance" and
believes that "the Special Master must foster a ‘holding environment’ in
which parents feel understood and decisions are framed in a
child-centered, supportive atmosphere." In his view, "the process is
designed to eliminate negotiation and problem solving by the parents and
encourage parallel parenting. Co-parenting can be conducted in a more
rational and businesslike manner when sessions with the Special Master
are the only face to face contact parents have. As issues are resolved,
the frequency of appointments gradually diminishes. Parents disengage
and are encouraged to deal with issues in a more proactive, planned
manner which decreases the emotional nature of their interactions."
The question may emerge regarding how to handle a
situation where one parent is using the Master's services far more than
the other. Masters differ in their approach. Some say that any parenting
issue, regardless of who brings it to the Master’s attention, is
something for which both parents are responsible. Others believe that if
one parent is using the Master as a virtual soapbox to harangue his or
her position, that constitutes abuse of process and that parent should
be billed separately. Issues such as these must be spelled out at the
outset of the contract.
As might be imagined, being a Special Master is not a
job without its perils. Dealing with such contentious group of people
who are wrestling with such emotionally-laden subjects is not unlike
trying to defuse a ticking bomb. But in many areas, Special Masters have
immunity from prosecution. And they may not be ordered to testify,
although they may choose to do so if they wish. Similarly, Special
Masters are not obligated by ex parte rules: they may contact the judge
on their own volition without notifying attorneys, or contact one
attorney without notifying the other. In practice, however, Special
Masters are scrupulous in avoiding the appearance of favoritism. But the
Special Master is able to contact the judge if s/he feels that an issue
needs the Court is attention.
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