What’s the difference between a Special Master on Custody issues, and a Superior Court Judge and does it matter?
In some family law matters, even contested ones, the parents are able to continue making rational parenting decisions in the best interests of their children. Unfortunately, in others they can’t agree on anything when it comes to their kids. When parents can’t agree on decisions about their children, the Superior Court makes decisions that the parents could and should have.
Superior Court Judges have total authority over all family issues in divorce, legal separation, and parentage matters, such as who has legal custody (the ability to make decisions about the health, education, and welfare of a child); who has physical custody (who the child spends most time with); where the children go to school; and what the specific parenting plan is going to be. These are significant issues, and the Court sometimes spends significant time in deciding them.
Judges also have authority over other smaller, but equally important everyday decisions, such as whether the parents can swap custodial weekends with the children for a special event; whether the exchange time for the children should be permanently modified so that it’s at 6 p.m. on Fridays instead of 3 p.m.; which parent has responsibility to transport the children to the exchange location; which therapist should be chosen for the children; and whether and when the children should be able to call a parent during the other parent’s custodial time.
There are a multitude of these types of decisions that parents need to make about their children all of the time. It is extremely expensive for everyone, from a personal time and money standpoint for the parties and also systemically for the Court, to have to handle smaller issues like these at the courthouse. As a result, the Courts enacted rules that allow parties to opt out of asking a Superior Court Judge for orders on some ‘smaller’ parenting issues, and opt into using a Special Master on Custody. But there are significant differences between the use of a Superior Court Judge, and that of a Special Master.
For starters, and unlike the Superior Court, the use of a Special Master only occurs upon agreement of the parties; it cannot be forced on someone. And, unlike the continuing jurisdiction (authority) of the Court over children which usually lasts until the children are no longer minors, Special Masters are generally hired for a term not to exceed two years, even if the children are very young. Also unlike Court, this is a fee based process in which the clients actually hire the Special Master as an independent professional.
Another major difference is that Judges make orders, but Special Masters issue “Decisions”. Decisions have the weight of an order and will be enforced by law enforcement, but are not official orders of the Court unless/until countersigned (i.e., approved) by a Judge. The parties are still obliged to follow any Decision as if it were an order, but if a Decision is violated by a party, the other party cannot file a Contempt of Court action as punishment. However, once approved by a Judge, and if the former-Decision-now-an-Order is violated, a Contempt action can be brought against the violator.
Unlike Judges, Special Masters have limited authority over custody issues. Specifically, while Judges can make broad orders, including initial orders establishing custody, Special Masters are primarily hired to implement existing parenting orders or an existing parenting scheme. A significant part of Special Master work is to clarify areas of ambiguity in existing orders, and make minor adjustments as needed by the family, and which are in the best interests of the children. A good way to view Special Masters is that we are the tie breakers for the parents.
In Court, a Judge cannot hear just one party if the other party hasn’t been noticed to appear, unless it’s an emergency. And there’s always some sort of record (even if just a Minute Order) of those proceedings. Special Masters control their proceedings, and can meet with and speak with parties together or one at a time, with or without attorneys present, and with or without records being kept. And, unlike a judge, Special Masters also have the authority to interview third parties (e.g., a child’s teachers and/or counselors), without any party being present, in order to obtain enough information upon which to make a Decision. We can also interview children, under appropriate circumstances.
Last, and most importantly, to the degree that parties can afford it, a party has much greater access to a Special Master for purposes of explaining circumstances or arguing for a change in the orders, than would ever be allowed by a Judge. The access piece, which can be expensive, is an aspect of the process that’s prized by clients; the other one is that they stay out of Court, and generally don’t need their respective attorneys to represent them while the Special Master is on the case.