Family Law Section

Special Masters

Research has shown that ongoing conflict between parents after divorce can significantly affect a child’s emotional adjustment to the divorce. As many states look for ways to reduce parental conflict and its related litigation, several have turned to the use of special masters to assist these conflicted families. Special masters are court-appointed experts, appointed pursuant to Rule 53 of the rules of civil procedure, who assist judges in a quasi-judicial role to avoid frequent, continuing custody litigation. The special master's role in custody cases is to make decisions about children when the parents cannot and to assess, report, and make recommendations to the court about custody and visitation issues. The appointment of special masters in high conflict divorce cases can minimize trauma to the children of divorce by resolving custody-related disputes and reducing the court’s involvement with the family.

This article addresses the legal authority to appoint special masters in high conflict divorce actions and the limits of the special masters’ powers. In addition, it identifies conditions that compel the appointment of special masters and suggests practical guidelines for using special masters including what qualifies a person to act as a special master, what the order of reference should contain, and what procedural processes are available to ensure due process.

Authority to Appoint Special Masters

The statutory authority to appoint special masters derives from Utah Rule of Civil Procedure 53 which is nearly identical to the Federal Rule of Civil Procedure 53. The rule provides that any or all issues in an action may be referred to a master upon the parties’ consent. Without the parties consent, the court may appoint a special master only if some “exceptional condition requires it,” and reference to a master should be the exception and not the rule.

Another statutory source of authority for the appointment of special masters in Utah is found in the Utah Code of Judicial Administration (2002). Rule 4-510 establishes a court-annexed alternative dispute resolution program in the Second, Third, and Fourth Judicial Districts pursuant to the Alternative Dispute Resolution Act. The rule provides that civil actions filed after January 1, 1995 may be referred to the ADR program either upon the filing of a responsive pleading or on the court’s own motion. Utah Code §58-39a-2(1)(b) provides that alternative dispute resolution includes “arbitration, mediation, conciliation, negotiation, mini-trial, moderated settlement conference, neutral expert fact-finding, summary jury trial, and use of special masters and related processes in civil disputes” (emphasis added). In addition, special masters are included in the definition of a dispute resolution provider under Utah Code §58-39a-2(4).

State and federal case law clarifying Rule 53 has focused on three elements: 1) the “exceptional condition” requirement of subdivision (b); 2) the “exception and not the rule” requirement of subdivision (b) and; 3) the limitations of the special master’s powers. Rule 53(a) provides that the parties may consent to the appointment of a special master but, where the parties do not consent and the court by its own determination appoints a special master, subsection (b) requires that appointment shall be made “only upon a showing that some exceptional condition requires it.”

1. High Conflict Divorce Cases Involve Exceptional Conditions Justifying the Appointment of a Special Master

The Utah Supreme Court addressed the issue of what constitutes an “exceptional condition” within the meaning of Rule 53 in Plumb v. State, 809 P.2d 734 (Utah 1990) where it upheld the district court’s referral of the issue of attorney fees in a class action suit to a special master because the facts underlying the issue of attorney fees constituted “exceptional conditions.” The case made three points important to the use of special masters:

1. Utah has taken a flexible approach to the use of judicial resources such as special masters.

2. The facts underlying the issue determine whether an issue should be referred to a special master, not the category into which the issue falls.

3. Masters are most analogous to commissioners when acting in the performance of their duties.

The Plumb court turned to federal precedent and commentary for enlightenment on the issue of exceptional conditions. Although federal courts have not addressed the appointment of special masters in high conflict divorce cases, they have appointed special masters under “exceptional conditions” that are analogous to conditions found in divorce and custody cases. Federal courts have appointed special masters to monitor compliance with court orders, to implement settlements or court orders, to resolve issues and disputes arising under court orders, and to make decisions related to court orders. These same conditions are found in most high conflict custody cases that involve psychologically impaired parents who become litigious because they are unable to implement and follow court orders, or are unable to find reasonable solutions to the ongoing problems of divorce.

Combative parents may delay court proceedings, fail to cooperate with each other, and violate the terms of agreements. Where repeated violations disrupt parent/child relationships, exceptional conditions arise justifying the appointment of a special master to monitor, supervise, and manage the case. Where mental or emotional pathology exits, psychologists trained as special masters can be appointed to implement orders, develop methods for achieving compliance, and manage decision-making.

2. High Conflict Divorce Cases meet the “Exception and Not the Rule” Requirement

The second requirement in Rule 53(b) is that “a reference to a master shall be the exception and not the rule.” The Utah Supreme Court in Plumb v. State did not directly address the “exception and not the rule” requirement. In addition, most federal courts have not specifically addressed this requirement, but have merged it with the “exceptional circumstances” requirement. One federal appellate court upheld a local rule providing for across-the-board referral to full-time magistrates of employment discrimination cases under Title VII in two specified divisions of the Northern District of Georgia. The appellate court held that the referrals did not violate the federal civil rule even though the rule provides that referrals to special masters under its authority would be “the exception and not the rule.” The stringency of that rule was to be relaxed in Title VII context.

The Plumb case’s broad interpretation of Utah Rule 53(b) parallels this relaxed approach. The Utah Supreme Court saw “little virtue in an interpretation of rule 53(b) that unnecessarily narrows a trial judge’s options in dealing efficiently with the issues presented for decision.” In light of the Plumb case, appointment of a special master in every contested custody case would not be unreasonable since, in Utah, these cases would theoretically comprise only about 5% of all divorces filed. Appointment of a special master in all of these cases would likely qualify as the exception and not the rule. In addition, appointing a special master in every child custody case assigned to a guardian ad litem would probably not be unreasonable. In the Fourth District and Juvenile courts combined, a guardian ad litem was assigned in 111 cases in 1999. Of the 111 cases assigned to a guardian ad litem, about 90% of the cases involved divorce, and even though most of the cases involved parents with mental health issues that would certainly qualify under the “exceptional conditions” requirement, only about 1/4 to 1/3 of those cases would require the appointment of a special master. This would represent only about 1%-2% of divorce cases filed and would certainly be the “exception and not the rule.”

3. Powers of the Special Master

The third element that state and federal case law has focused on in clarifying Rule 53 is the delineation and parameters of the special master’s authority. Federal case law has held that a special master can micro-manage cases and resolve conflicts, but may not exercise ultimate judicial power and make decisions which significantly affect the court’s orders. Although Utah case law has not directly addressed the special master’s powers, the Utah Supreme Court in Plumb v. State found that masters are “most analogous to commissioners when acting in the performance of their duties.”

The Utah Court addressed the analogous powers of commissioners in Holm v. Smilowitz, 840 P.2d 157 (Utah. Ct. App. 1992) where it held that commissioners may assist judges in the exercise of their judicial power, but they have no ultimate judicial power. Two years after the Holms decision, the Utah Supreme Court further clarified the issue of commissioners’ authority in Salt Lake City v. Ohms, 881 P.2d 844 (Utah 1994) where it held that while commissioners as quasi-judicial officers “may perform many important functions in assistance to courts of record, they are not duly appointed judges and thus may not exercise core judicial functions . . . .” The Ohms Court further clarified that “Court commissioners are employees of the judiciary, not duly appointed judges. There are no provisions which subject them to the constitutional checks and balances imposed upon duly appointed judges of courts of record.” Since, as the Plumb court noted, special masters are most analogous to commissioners, they are thus subject to the same limitations of power as commissioners. A special master appointed in a high-conflict divorce case could not make final adjudications of custody or visitation or make decisions that significantly affect the court’s orders pertaining to custody and visitation.

In a custody case, a special master’s decisions about visitation would be limited only to issues of dates, times, and method of pick-up and delivery, and decisions about day-care, bedtime, diet, clothing, recreation, discipline, health care, and daily routines. The special master could also make decisions subject to adoption by the court about education, religious training, vacations and holidays, supervision of visitation, and participation in physical and psychological examinations, assessments, etc. In addition, the special master could recommend to the court that it review changes in custody or visitation or limit a parent’s access to the child.

Why Appoint Special Masters?

Protecting children from continuing litigation and parental conflict is the most compelling reason to appoint a special master. “Parental conflict interrupts many of the critical tasks of psychological development. It changes the nature of the parent-child relationship, creates anxiety and distress, over stimulates and frightens children, weakens parents’ protective capacity, and compromises identity formation. Most of all, it leaves children powerless to do anything about it.” Judith S. Wallerstein, Ph.D, a nationally recognized expert on the effect of divorce on children, says children should be protected from litigious parents. She stresses that the court should not intervene in a stable post-divorce family, but “ [c]hildren who are victims of high-conflict families may need a different kind of court intervention, e.g., a special master who monitors the family on an ongoing basis to reduce conflict and protect the child from warring parents.”

Parental alienation is another compelling reason to appoint a special master. Litigation increases parental alienation and leaves the child unprotected and in the middle of combative parents. Mental health experts advocate the need for early recognition of parental alienation and a comprehensive treatment approach carried out by a team of professionals including a “parenting coordinator” that functions like a special master.

In addition, congested court calendars would also benefit by reducing the number of times litigious parents return to court. The rate of return to court after the initial agreement in contested custody cases is high. A study by Richard E. Miller and Austin Sarat showed that divorce issues are more likely to be litigated than other types of grievances. Miller and Sarat studied the legal system’s role in solving grievances between parties in tort, discrimination and post-divorce problems. They found that of the 1000 disputes in each area, only 116 tort disputes and 29 discrimination disputes involved the use of an attorney and only 38 tort and 8 discrimination disputants reported taking their dispute to court. However, of the 1000 post-divorce disputes, 588 involved the use of an attorney and 451 took their dispute to court. Where only 9% of tort and discrimination grievances eventually enter the court system, nearly 50% of post-divorce grievances lead to court involvement. Miller and Sarat note that while in many divorce cases, the court’s involvement may have been more administrative than adjudicative, post-divorce cases were the “most disputatious and litigious” grievance they measured.

One study has shown that the appointment of special masters can dramatically reduce post-divorce litigation. In a paper presented at a Special Masters Training Conference in Palo Alto, California in 1998, T. Johnston presented a summary of research from a 1994 study on the decrease of court involvement after the appointment of a special master. The study followed 166 custody cases in the California courts. It found that during the year prior to the appointment of a special master, there were 993 total court appearances or about 6 appearances per family. In the year after the appointment of a special master, there were only 37 appearances or an average of less than one appearance per family.

The use of a special master also significantly reduces the time it takes for disputes to be heard. In most districts in Utah, parties must wait two to five weeks to have visitation issues heard by a commissioner. In many cases, the commissioner may refer the parties to mediation. If mediation is unsuccessful, the parties wait an additional two to five weeks for another hearing. If the parties disagree with the commissioner’s ruling, they may file an objection and wait another three to six weeks for a hearing before a judge. The entire process can take up to two months or longer. However, where a special master has been appointed, visitation issues can be heard by an expert familiar with the parties own unique situation within days and sometimes immediately. Guidelines for the Use of Special Masters

The use of special masters in the area of divorce is an emerging tool not yet structured into local court rules in Utah. Therefore, the judges and attorneys that have used special masters in Utah divorces have relied on guidelines from other states. Many Utah judges have effectively followed California’s lead in this area. In 1998, Monterey County, CA implemented detailed local court rules for the appointment of special masters in child custody and visitation cases. Other California counties have also outlined specific rules governing the appointment of special masters. The rules address three of the most essential guidelines needed for the successful use of special masters in divorce cases: 1) the qualifications of the special master; 2) the Order of reference and; 3) the procedural and due process safeguards.

1. Qualifications of the Special Master

Most high-conflict divorce cases involve psychologically impaired parents that create problems such as parental alienation, child abuse, and domestic violence. Therefore, it is essential that special masters appointed to these cases be specially trained psychologists, psychiatrists, attorneys, or mediators who specialize in helping impaired parents resolve disputes about what is best for their children. The special master’s ultimate role is not to prepare an investigation or evaluation, nor to mediate, but rather to make decisions when the parents cannot. Therefore, the special master should be well trained to assess, report and make recommendations to the court regarding the impact of those decisions on the best interests of the children.

The Monterey County Rules require special masters to be attorneys, psychologists, or psychiatrists. Psychologists and psychiatrists should have at least 3 years post-license experience in child and family therapy, 3 years in diagnostic evaluations for family court, and 3 years experience in family mediation. In addition, they should have training in family systems, child development, psychology of divorce and custody, and have a working knowledge of custody law, with a minimum of six cases working with attorneys and/or court appearances. Attorneys appointed as special masters should have practiced family law for 10 out of the last 12 years, carried at least 20 custody cases through judgment, and trained as a mediator. In addition, they should have completed 6 units of child development and 3 units of family systems.

2. The Order of Reference

The order appointing the special master can be tailored for each situation, but should be as detailed and specific as possible. The Plumb court held that “the order is at once the chart and limitation of the master’s authority and the master should not exceed it even with the consent of the parties.” Some Utah judges and attorneys have successfully used an order of reference fashioned after the order found in the guidelines of the Monterey County Rules. The order should specify the special master’s role, powers, duties, term, fee, and other incidental matters.

In specifying the special master’s duties, the order should contain a complete list of decisions that the special master has the authority to make. These could include making decisions about dates, times, and method of pick-up and delivery, sharing of parent vacations and holidays, selection of child care providers, bedtime, diet, clothing, slight alterations in the time share schedule, extended family participation in visitation, and daily routines. Issues on which the special master could make recommendations to the court would include private school education, church attendance, large changes in vacation and holiday timeshares, supervision of visitation, appointment of counsel for the children, alteration of physical custody or legal custody, and limitations on a parent’s access to the children. Issues which should be reserved for adjudication by the trial court include altering an award of physical or legal custody, altering a child’s primary residence, prohibiting a party’s contact with the children, and requiring or prohibiting adherence to a religion. The order should indicate that the special master’s decisions are effective as orders when made and will continue in effect unless modified or set aside by the court.

The order should also include a specified length of time that the special master should be appointed. Generally the special master would be appointed for one to two years with a goal of transitioning the family to a family counselor.

URCP Rule 53 allows the special master to charge a fee to be paid by the parties, and provides that the order appointing the special master should specify each party’s responsibility for the fee. The order should also specify the fee arrangement and give the special master the ability to recommend a reallocation of fees as a sanction for obstructive behavior. Because of the nature of the issues involved and the almost guaranteed dissatisfaction of one or both parties, the order should specify that the fee is to paid previous to the commencement of the special masters duties in the form of a retainer.

Where an impecunious party is involved, a pro bono special master could be appointed. However, caution should be used in allowing parties to access the services of a special master for free since having to pay for the services could be an effective deterrent to parties who have themselves created a litigious lifestyle and environment that is detrimental to their children. The fee would conceivably be much less burdensome than attorney fees since, as noted above, the decision-making role of the special master would drastically reduce the number of court appearances by the parties.

3. Procedural and Due Process Safeguards

URCP Rule 53 provides that the parties may stipulate to the appointment of a special master, subject to the court’s approval and the consent of the special master selected. Otherwise, the court may appoint a special master without stipulation subject to section (b). If the special master is appointed without a stipulation, then URCP Rule 53(f) and ((e)(2) ensure due process to the parties involved by allowing them to “object to the appointment of any person as a master on the same grounds as a party may challenge for cause any prospective trial juror in the trial of a civil action.” The proposed special master would also have the right to accept or decline the appointment, with or without stating a reason, but should decline the appointment if he or she has a conflict of interest or any bias that would prevent impartiality. Rule 53 also provides that the parties may file a motion objecting to any of the special master’s findings. However, the special master’s authority and credibility are preserved by section (e)(2) which provides that the court shall accept reports by the special master unless clearly erroneous.

Special masters are a valuable judicial resource that can reduce the level and duration of parental conflict. Children exposed to this ongoing conflict are placed at risk for emotional and behavioral problems that can last a lifetime. The higher the level of parental conflict and the longer it continues, the greater the harm to the children. Early intervention by a special master can decrease this risk by reducing the ongoing litigation typical of high conflict divorces and can assist the court with the paramount goal of protecting the best interest of the child.

Footnotes

1. Utah R. Civ. P. 53 (b).

2. Utah Code Ann. §78-31b-5.

3. Utah Code of Judicial Administration, Rule 4-510.

4. Plumb v. State, 809 P.2d 734, 741-42 (Utah 1990).

5. Plumb at 738 n. 38.

6. Walker v. U.S. Dept. of Hous. and Urban Dev., 734 F. Supp. 1231 (N.D. Tex. 1989); Morales Felician v. Romero Barcelo, 672 F. Supp. 591 (P.R. 1986); EEOC v. Local 580, Int’l Ass’n of Bridge, Structural & Ornamental Ironworkers, 669 F. Supp. 606 (S.D.N.Y. 1987), aff’d, 925 F.2d 588 (2d Cir. 1991.

7. Lelsz v. Kavanagh, 112 F.R.D. 367 (N.D. Tex. 1986); Halderman v. Pennhurst State Sch. & Hosp., 612 F.2d 84 (3rd Cir. 1979), rev’d on other grounds, 451 U.S. 1 (1981).

8. Morgan v. Kerrigan, 530 F.2d 401 (1st Cir. 1976), cert. denied, 426 U.S. 935 (1976), reh’g denied, 429 U.S. 873 (1976); Turner v. Orr, 722 F.2d 661 (11th Cir. 1984), cert. denied, 478 U.S. 1020 (1986).

9. Hart v. Community Sch. Bd. Of Brooklyn, 383 F. Supp. 699 (E.D.N.Y. 1974), appeal dismissed, 497 F.2d 1027 (2d Cir. 1974).

10. Parker v. Dole, 668 F. Supp. 1563 (N.D. Ga. 1987).

11. Id.

12. Plumb at 741.

13. In 1999, 1,861 divorces were filed in the Fourth Judicial District Court of which 839 (45%) involved children. Telephone interview with Robert Turner, Information Services Dept. for the Admin. Office of the Courts, Utah State Data Warehouse (March 2000). Only about ten to twenty percent of the 839 cases involving children would have been contested custody cases and would account for only 5% of all divorce cases. Lynne M. Kenney and Diana Virgil, A Lawyer’s Guide to Therapeutic Interventions in Domestic Relations Court, Ariz. St. L. J. 646 (1996), citing B. Weiner, An Overview of Child Custody Laws, 36 Hosp. & Comm. Psychiatry 838, (1985); The Child in Court: A Subject Review, 104 Pediatrics 1145-48 (1999), Committee on Psychosocial Aspects of Child and Family Health (last modified 1999) <www.aap.org/policy/re9923>.

14. Telephone interview with Lori Brown, Assistant Director of the Office of Guardian ad Litem (March 2000)

15. Interview with Angela Adams, John Moody, Guardians ad Litem of the Fourth Judicial District, Provo, Utah (April 6, 2000).

16. Plumb at 743

17. Holms at 167. See also Utah Code §78-3-31(6) and Utah Code of Judicial Administration, Rule 3-201(9) which both specifically prohibit commissioners from making final orders.

18. Ohms at 851.

19. Id.

20. Hildy Mauzerall, Patricia Young & Debra Alsaker-Burke, Protecting Children of High Conflict Divorce: An Analysis of the Idaho Bench/Bar Committee to Protect Children of High Conflict Divorce’s Report to the Idaho Supreme Court, Idaho L. Rev., 303 (1997), citing Carla B. Garrity & Mitchell A. Baris, Caught in the Middle: Protecting the Children of High-Conflict Divorce Idaho L. Rev. 12 (1995).

21. Judith S. Wallerstein & Tony J. Tanke, To Move or not to move: Psychological and Legal Considerations in the Relocation of Children Following Divorce, 30 Fam. L.Q. 305, 323 (1996).

22. Id.

23. Kathleen Niggemyer, Parental Alienation is Open Heart Surgery: It Needs More Than a Band-Aid to Fix It, 34 Cal. W. L. Rev. 567, 587-88 (1998) (citing Carla B. Garrity & Mitchell A. Baris, Caught in the Middle: Protecting the Children of High-Conflict Divorce (1994)).

24. Id. at 588.

25. The Child in Court: A Subject Review, Pediatrics at 1145-1148.

26. Richard E. Miller & Austin Sarat, Grievances, Claims, and Disputes: Assessing the Adversary Culture, 15 L. & Soc’y Rev. 525 (1980-81), reprinted in John S. Murray et al., Mediation and Other Non-binding ADR Processes, 5-7 (1996).

27. Mediation and Other Non-binding ADR Processes at 5-7.

28. Janet R. Johnston &Vivienne Roseby, In the Name of the Child: A Developmental Approach to Understanding and Helping Children of Conflicted and Violent Divorce. Free Press (August 1997).

29. Cal. Monterey Cty. Coord. Trial Ct. L.R. 11 (2002)

30. See for example, Cal. Sup. Ct. Local Rules, Sacramento County, Rule 14.09 (1999); Cal. Sup. Ct. Unif. Local Rules, San Francisco County, Rule 11.53 (2000); Cal. Sup. Ct. Local Rules, San Mateo County, Rule 2.3 (2000).

31. Interview with Dr. Jay Jensen, psychologist and leading expert on children’s divorce issues, Provo, UT (June 2002).

32. Monterey County, Rule 11.01.

33. Rule 11.02

34. Id.

35. Id.

36. Id.

37. Plumb at 742.

38. Cal. Monterey Cty. Coord. Trial Ct. L.R. 11.08, Attachment I (2002).

39. Interview with Liz Dalton, Esq., family law attorney and leading expert on divorce mediation, in Provo, UT. (May 2002); see also Cal. Monterey Cty. Coord. Trial Ct. L.R. 11.02(e) (2002).

40. Interview with Liz Dalton and Jay Jensen (Apr. 26, 2000).

41. Id.

42. Janet R. Johnston & Vivienne Roseby, In the Name of the Child: A Developmental Approach to Understanding and Helping Children of Conflicted and Violent Divorce. Free Press (August 1997).

43. Valerie E. Hale, Ph.D., Annual Family Law Seminar materials, May 10, 2002