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What does the word "expressly" mean?

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  • blackspatula
    Hello group...looking for input on a couple of questions.... 1) What does the word expressly mean? A Child Legal Representative was appointed in my
    Message 1 of 1 , May 27, 2006
      Hello group...looking for input on a couple of questions....

      1) What does the word "expressly" mean?

      A "Child Legal Representative" was appointed in my Colorado
      post-dissolution custody case to "to protect the best interests of the
      minor child pursuant to Section 14-10-116(2)(a), C.R.S".

      The Orders of Appointment (Complete Orders stated below) stated at (#9):
      "It is further ORDERED that unless the appointment is
      expressly continued by the Court, the appointment of the
      Representative shall terminate upon the entry of a decree of
      dissolution and permanent orders or upon resolution of the post-decree
      motion.

      Six months later, the parents stipulated to a Parenting Plan that
      resolved the custody and parenting time issues and the "Parenting
      Plan" was entered by Order of the Court.

      The Order of the court simply stated:
      "The attached partial parenting plan, as agreed to by the parties,
      is hereby adopted as an ORDER of this Court."

      The Parenting Plan resolved the Custody and Parentig time issues
      between the parents. The Order did not "expressly" continue the CLR's
      appointment...(as the issues had been resolved by the Parenting
      Plan...there was no need to continue the CLR's appointment)

      Three months later, the dad filed a 2nd Custody Motion. The CLR
      appeared before the court...but had no "new" orders of appointment. I
      guess everyone (including the judge) "assumed" her orders of
      appointment were still in effect and nobody challenged her being
      involved in the case.

      The CLR continued to "file reports and recommendations" to the
      court...although she didn't have a valid "Order of Appointment" (and
      ended up charging both parents more that $50,000 in fees for the
      reports and recommendations regarding the 2nd custody action.


      My question is: What does "expressly" mean?

      Did "written" orders have to be entered to "expressly" continue the
      CLR's appointment?

      My thinking is that once the parenting issues were resolved, her
      appointment was terminated. In the 2nd custody action, there were no
      "new" orders of appointment entered...thus the CLR was perpetuating a
      fraud upon the court by "appearing" as though she had an appointment.


      2) Were the Orders of Appointment VOID in the first instance?

      Under 14-10-116(2)(a), C.R.S, a CLR (Legal Representative) is
      prohibited from being a "witness to the case" (because she is an
      attorney...and not subject to cross examination. A "Special
      Advocate", however, is permitted to files "reports and
      recommendations" because a Special Advocate CAN BE called for cross
      examination as to the truthfulness of her "report and recommendation".
      The CLR has always represented herself as being a "Child Legal
      Representative...not a Special Advocate.

      The CLR was not subject to cross-examination as to the truthfulness of
      her "reports and recommendations". (She made many false statements
      and put 2nd and some 3rd hand hearsay into her "reports and
      recommendations" but I was not able to put her under oath.) Was the
      CLR acting as a "witness" to the case when she submitted "reports and
      recommendations?

      If so....the CLR was
      -violating the law...14-10-116(2)(a)
      -violating Chief Justice Directive 97-02 (lawyer cannot be a witness),
      and
      -violating Colorado Rules of Professional Conduct Rule 3.7 (Lawyer as
      a Witness) (among serveral other violations of the Rules of
      Professional Conduct).

      Were the Order of Appointment void in the first instance?

      Did the CLR have an obligation to tell the court she could not act as
      both a CLR and a "Special Advocate"

      Was the CLR committing a fraud upon the court if she did not inform
      the court that she could not act as both a CLR and a Special Advocate?

      If so, then she would be also violating Colorado Rules of Professional
      Conduct Rule 8.4 - Misconduct (It is professional misconduct for a
      lawyer to: (a) violate or attempt to violate the rules of professional
      conduct....(c) engage in conduct involving dishonesty, fraud, deceit
      or misrepresentation; (d) engage in conduct that is prejudicial to the
      administration of justice;

      If the Orders of Appointment were VOID in the first instance...then
      can I make a motion to the court to order the CLR to return all the of
      the fees she charged to me and request damages? I assume Colorado
      lawyers are required to have "Malpractice Insurance" arent' they?

      Thanks for your thoughts.....

      BlackSpatula


      COMPLETE ORDERS OF APPOINTMENT (listed below)

      1) The CLR shall comply with the requirements of Chief Justice
      Directive 97-02.

      2) The CLR was appointed because the case involved
      a) high conflict between the parties

      3) The CLR was directed to "investigate and make recommendations to
      the Court concerning:
      a) custody
      b) parentig time

      4) It is further ORDERED that the minor child, whom the
      Representative represents, shall be a party to this action, and the
      Representative shall serve as an officer of the Court in representing
      the child(ren).

      5) The Representative shall be provided by all parties with copies
      of all pleadings and papers herein. The Representative shall be
      notified before any action affecting the minor child(ren) is taken by
      either party or their counsel.

      6) The Representative shall file such pleadings and move or
      petition the Court for such relief as may be deemed appropriate or
      necessary by the Representative, and shall be required to be a party
      signatory to any stipulation or agreement (whether temporary or
      permanent) affecting the interest or welfare of the minor child(ren).

      7) It is further ORDERED that the Representative shall also file, a
      clear, concise, written report setting forth independent and informed
      recommendations to the Court regarding the best interests of the
      child(ren) at least ten days before any scheduled hearing.

      8) It is further ORDERED that without any further release or
      liability the Representative, upon presentation of a certified copy of
      this order to any agency, hospital, organization, school person or
      office, including the clerk of this court, pediatrician, psychologist,
      psychiatrist, law enforcement agency, or social service agency, shall
      have access to inspect and copy records relevant to the best interests
      of the minor child. The Representative shall maintain information
      received from any source as confidential, and it shall not be
      disclosed except in reports filed with the Court in this action, to
      the parties in this action and their respective counsel, or as further
      authorized by order of the Court.

      9) It is further ORDERED that unless the appointment is expressly
      continued by the Court, the appointment of the Representative shall
      terminate upon the entry of a decree of dissolution and permanent
      orders or upon resolution of the post-decree motion.

      10) It is further ORDERED that the parties shall bear the expense
      of the Representative. The Representative's fees are to be billed at
      an hourly rate during pendency of this action. Any excess retainer
      shall be refunded to the parties by the Representative. Representative
      will not begin work on this me until payment is received. Petitioner
      to pay retainer within ten (10) days of receipt of this order. Final
      division of the Special Advocate's fees shall be determined at a
      further hearing in this matter.

      11) It is further ORDERED that the matter of the Representative's
      fees may be reconsidered at a future hearing. Consideration as to the
      payment of the Representative's fees shall be based upon the financial
      status of the parties as well as the necessity and reasonableness of
      the Representative's fees.
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