Utah Court Rules – Published for Comment
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Posted: December 30, 2024
URCP053A. Special masters for parenting disputes in domestic relations actions. NEW. This new rule is proposed to cover the court appointment of special masters specific to domestic relations actions. A separate rule is being drafted and will be proposed to cover the training and qualifications of a special master in domestic relations actions.
The type of cases that needs Special Masters appointed are the ones in which one of the parties will not agree to the appointment of a Special Master. I would greatly prefer a version where the Court has the ability to appoint a Special Master. This Rule could be limited for “high-conflict cases” or for “exceptional cases where the Court determines a Special Master would greatly reduce high attorney fees or conflict that is harming the children.”
I can sympathize with the reasons/circumstances underlying Kayla Quam’s proposal, but the problem with her proposal is that courts could abuse such sua sponte power by “finding” virtually every case to be a high-conflict case, so that the case gets off the court’s desk and into the hands of a special master who gets paid by the hour. In my experience, too many courts already classify most divorce and child custody cases as “high conflict” to justify treating the parties and counsel shabbily, and if given the opportunity to outsource work to someone else, few courts would resist.
Regardless, special masters are generally a bad idea. They tend not to be sufficiently attentive, responsive, analytical, neutral, humble, thick-skinned, or resourceful. Few parties take them seriously. I’ve never had a positive experience with a special master. They love the title, they love the billing, but the concept doesn’t match the real-world application. They don’t perform a valuable service.
I can sympathize with the reasons/circumstances underling such a proposal, but I fear that granting courts a sua sponte right to appoint special masters in “high-conflict” cases would be too much of a temptation to treat virtually all cases as “high conflict” cases as an excuse for courts to outsource the work to a special master.
Regardless, special masters are generally a bad idea because they do not solve the problems for which they were created. I’ve never had a positive experience with a special master. They are insufficiently attentive, responsive, neutral, inquisitive, analytical, and resourceful. They love the title, they love to bill, but their work product does not justify their appointment. Parties don’t take them seriously because they are so often perceived as “not the judge” and thus “possessing no real power”.
I think that this is a move in the right direction. I would like to see more teeth in the section about dismissing a special master though – we’ve seen too many cases where special masters are favoring one party over another; failing to apply the law; taking too long to make time sensitive decisions, etc. It should be easier and quicker to ask for a different one.
. . . because a different special master will solve those problems?
The problem with special masters lies not in the structure of a special master rule but in the implementation of a special master appointment itself. Special masters generally do a mediocre job that does not improve the situation as it existed before appointment of a special master.
. . . because a different special master will solve those problems?
The problem with special masters lies not in the structure of a special master rule but in the implementation of a special master appointment itself. Special masters generally do a mediocre job that does not improve the situation as it existed before appointment of a special master.
My concern is the language that they can modify the parenting plan. I think that exceeds their authority. Commissioner’s are not allowed to modify the parenting plan. It has been my understanding that a special masters job is to interpret the areas where the parenting plan is unclear and assist the parties when they have disagreement. The problem is every special master case is different and it takes some time to figure out what each case needs and how to properly handle the parties. Many times the parties do not bring issues until they are emergencies and then they are frustrated with timely responses.
Special masters are not a silver bullet on every type of case, but they can be incredibly helpful when used properly. In regards to Mr. Johnson’s comments he is right that there are some mediocre special masters, but that statement is applicable to every type of professional in our field, ie GAL’s, custody evaluators, therapists, reunification therapists, mediators, attorneys(present company excluded :). Just because we have all of these professionals does not mean that they should not be used on every case. On this matter is there is currently a rule on Special Masters. The Rule does need to be clarified and revised from it’s current format so that provides more guidance to the practioners for those who to chose to use it.
In regards to the issue of neutrality this is the same concern that comes up in every case with every commissioner, judge, mediator, as long as the rulings are explained in writing and both sides have an ability to object which they do then the parties are protected. The rule is helpful. I especially like the language and the end that the role can be expanded for other issues as the court and parties deem appropriate.
I appreciate all of the hard work that has gone into the drafting and revisions of the rule. The committee has done a great job with this rule.