ALL IN THE FAMILY – A CONFLICT OF INTERESTS
By Matthew B. Drexler
Partner and Attorney
The Gasper Law Group
Colorado recognizes the rights of parents, grandparents and even psychological parents in child custody disputes. It is easy to imagine a scenario where a young couple, once madly in love, is now squaring off in court about who should get more time with the child or who should be allowed to move with the child out of state. However, the young couple could not have imagined all those who would appear in court demanding parenting time (also known as visitation).
It takes a village to raise a child, right? The more the merrier? The problem is deciding first who is entitled to legally claim parenting time and second how much time should be awarded to those entitled? However, there is a much more delicate issue to resolve first: Who will represent who in the child custody case?
It is all too common that a parent schedules an initial consultation with an attorney to discuss her child custody case and explore her options. When the mother arrives at the attorney’s office, she is accompanied by her loving parents (i.e. the maternal grandparents) and a close family friend who has been caring for the child for the last six months while the mother and father desperately tried to mend their personal relationship. An attorney unfamiliar with ethical considerations or an attorney far too motivated to grab three separate retainers may jump for joy. After all, don’t all three parties have a similar interest in cutting dad out of the picture?
It turns out that several ethical rules prevent representing multiple parties in a case. Even if one party’s interests are not directly adverse to another party, waiving a conflict or even a potential conflict of interest requires time and effort, which may translate to additional fees and costs. A waiver of a potential conflict of interest between the parties, even if it can be achieved, does not guarantee that either party will be free from challenges by another party (or the Court).
In the above scenario, multiple people are likely to fight for already precious parenting time. The grandparents will claim that it is in the child’s best interest to spend a few days or overnights per month with grandma and grandpa. As the biological parent, mom will insist that her parenting time wishes automatically trump everyone else’s wishes. Of course, the family friend who has spent six months caring for the child may have standing as a psychological parent under Colorado law and would have essentially the same legal standing as a biological parent (however, after a string of decisions by the Colorado Court of Appeals, the friend may be a bit bummed out that she also will have a child support or financial obligation for the child).
Even before the first pleading is filed, a biological parent, grandparent and psychological parent are poised to compete (read potential conflict of interest) about who should get parenting time with the child … and this is before the father even gets involved!!
So, if you happen to be the grandparent or the family friend, please don’t be offended if we ask you to remain in our lobby while we meet with mom to discuss her options. Of course, you can always call us first and we will ask mom to wait in the lobby.