What does the word "expressly" mean?
- 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
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
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
If so....the CLR was
-violating the law...14-10-116(2)(a)
-violating Chief Justice Directive 97-02 (lawyer cannot be a witness),
-violating Colorado Rules of Professional Conduct Rule 3.7 (Lawyer as
a Witness) (among serveral other violations of the Rules of
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.....
COMPLETE ORDERS OF APPOINTMENT (listed below)
1) The CLR shall comply with the requirements of Chief Justice
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:
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
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.