THE GRIFFIN PROBLEM: Avoiding a change of decision-making responsibility in the event of an impasse between two joint decision-makers
In 1985, the Supreme Court of Colorado decided Griffin v. Griffin, 699 P.2d 407 (Colo. 1985); a seminal case that stood for the proposition that an agreement between parents to select a school for their children (without providing for a solution should the parents disagree) is unenforceable and that the courts are not equipped to select a school on behalf of the parents. In order to resolve the impasse between the parties, the courts cited C.R.S. § 14-10-130 and ruled the ultimate choice of schools belongs to the custodial parent.
At the time Griffin was decided, C.R.S. § 14-10-130(1) stated, “[e]xcept as otherwise agreed by the parties in writing at the time of the custody decree, the custodian may determine the child's upbringing including his education...." (emphasis added). However, since the legislators revised § 14-10-130(1) in 1999, by substituting “the custody decree" with “the allocation of parental responsibilities with respect to a child" and “the custodian" with “the person or persons with responsibility for decision-making," legal practitioners have been left to speculate whether the courts are going to continuing applying Griffin or if Griffin has been overturned.
Arguably, because Colorado no longer designates a custodial parent, but rather allocates parental responsibility, to include decision-making authority and parenting time, the courts can no longer follow Griffin. But, it can also be argued that the logic and process that was used in determining Griffin remains true and that practitioners should simply substitute “custodian" with “the person or persons with responsibility for decision-making" as the legislators did when they revised C.R.S. § 14-10-130(1).
If Griffin still stands, the court would not be permitted to select a school, or other major decision regarding the children, such as medical treatment or extra-curricular activities. The only solution left for the court would be to change decision-making responsibility to one parent or appoint a decision-maker at the parents’ request. However, if Griffin has been overturned, the court may make decisions regarding the children’s school and parental decisions of that nature.
Subsequent case law provides no guidance for practitioners. For example, in In re the Marriage of Dauwe, 148 P.3d 282 (Colo. App. 2006), the court t resolved a long-standing dispute between joint decision-makers as to whether their children should attend therapy. The court stated that because the decision-makers and noted that because they could not resolve the issue, “the court did so." Id. at 285. The court goes on to say that they found “no legal authority that prohibits the court from resolving a dispute between joint decision makers." Id. However, it is important to note that the court did not order therapy for the children, but merely allocated the decision to the mother. In addition, several Colorado trial courts are still citing and applying Griffin. For example, the District Court in Douglas County recently declined to select a school for the children and set a hearing for modification of decision-making. See In re the Marriage of Calahan, 09DR525. The District Courts in Weld County and Jefferson County has also recently declined to select a school for the children to attend. See In re the Marriage of Derosia and Theo, 04DR199. But, on the other hand, CASE JUDGE DID NOT APPLY.
To avoid this “Griffin Problem" completely, practitioners should resist drafting parenting agreements that require joint decision-makers to reach a mutual agreement regarding, among other things, major decisions regarding their children. However, family law practitioners will argue that this is not practical and against the idea of two parents co-parenting as joint decision-makers. An exception to allow an “agreement to agree" in this case is to include a provision in the parenting agreement that provides what the parents will do should they not reach an agreement. For example, should the parents reach an impasse regarding school-choice, the parents agree the children should attend the school within one of the parent’s school district.
Griffin only comes into play when joint decision-makers have an agreement to agree without any direction on how to resolve an impasse. Until the courts or legislature provide some insight as to whether the courts can break a deadlock between two joint decision-makers, it would be best to avoid the problem all together.