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Kirshenbaum v. Kirshenbaum

January 27, 1997

MICHAEL J. KIRSHENBAUM, RESPONDENT,
v.
JACQUELINE A. KIRSHENBAUM, APPELLANT.



Appeal from Superior Court of King County. Docket No: 93-3-03763-9. Date filed: 12/13/95. Judge signing: Hon. Charles V. Johnson.

Authored by H. Joseph Coleman. Concurring: Susan R. Agid, C. Kenneth Grosse.

The opinion of the court was delivered by: Coleman

COLEMAN, J. -- Jacqueline and Michael Kirshenbaum have two sons. In an action to dissolve the Kirshenbaums' marriage, the court established a parental visitation schedule. The dissolution decree and parenting plan vested an arbitrator with authority to make "additions or alterations" to the parenting plan. After the arbitrator conditionally suspended Jacqueline's visitation rights, Michael sought to reduce the decision to a court order. In response to a challenge to the arbitrator's authority, the Superior Court ruled that it includes the power to suspend parental visitation rights. We agree that the parenting plan authorizes the arbitrator to suspend Jacqueline or Michael's visitation rights. Because the arbitrator's decision to suspend visitation is subject to immediate court review, we also hold that the court's delegation of this authority was valid under the marriage dissolution act. We therefore affirm the Superior Court judgment.

The Kirshenbaums' two sons, Mikhail and Kory, are now the age eight and six, respectively. In the dissolution proceedings, the court awarded residential care of the children and sole decisionmaking authority to Michael.

The parenting plan established a parental visitation schedule for each day of the year. It incorporated the court's findings that:

[x] The abusive use of conflict by [Jacqueline] creates the danger of serious damage to the child's psychological development.

[x] Other: The mother refuses to stop involving the children in the conflicts and believes that they should have the right to know what their father is like. The mother has also created conflicts in front of the children[.]

Although the court found that Jacqueline's conduct had a potentially adverse effect on the children's best interests, it placed no restrictions on her residential time. Instead, the court appointed Dr. Jack Reiter as "joint counselor for the parties concerning all aspects of the parenting plan" and "binding arbitrator," providing that "if there are any disagreements between the parties concerning the implementation of the parenting plan, Dr. Reiter shall make the final binding decision." The court vested Reiter with the power to make "alterations and additions to the parenting plan as may be deemed appropriate[.]" The parenting plan provided a right to have all dispute resolution decisions reviewed by the Superior Court.

After the dissolution decree was entered on October 26, 1994, Michael went to Jacqueline's parents' house to assume custody of the boys. Jacqueline and her parents verbally and physically assaulted both Michael and Elizabeth Stanton, the guardian ad litem. Pursuant to Stanton's recommendation, Reiter temporarily suspended Jacqueline's visitation rights until he could become actively involved in the case. When Michael and Jacqueline first met with Reiter on November 4, 1994, Reiter terminated this first suspension.

Reiter referred the boys to child psychologist Julia F. Moore, M.D. for psychiatric evaluation and treatment. Moore determined that Mikhail suffered from depression, traumatic stress, adjustment disorder, and bi-polar disorder, which were causing uncontrolled tantrums, sleep deprivation, and anxiety attacks. After unsuccessfully attempting to treat Mikhail with benadryl, Moore prescribed lithium and depakote. Mikhail also suffered from encopresis, *fn1 for which his primary care physician had recommended mineral oil and dietary changes.

Jacqueline refused to give Mikhail his lithium and mineral oils during her visitation periods. Reiter again suspended Jacqueline's visitation rights. He reinstated Jacqueline's rights three months later when she agreed to go through therapy, give Mikhail his medicine and treatments, and stop sleeping with the boys.

Moore noted a great improvement in Mikhail's mental and physical health during the three months the children had spent exclusively with their father. When Jacqueline's visitation rights were reinstated, however, Mikhail relapsed into his depression, temper tantrums, and frequent soilings. Moore recommended to Reiter that Jacqueline's visitations be supervised. On July 26, 1995, Reiter suspended Jacqueline's visitation rights for a third time, after discovering that Mikhail's lithium levels were low. Reiter also feared that Jacqueline was teaching her children not to trust their father, the doctors, or Stanton. Reiter told Jacqueline that he would reinstate her visitation rights if she agreed to follow the directions of Mikhail's doctors and stop sleeping with the children.

Michael brought this action, requesting an order confirming Jacqueline's visitation suspension. Jacqueline filed a counter-motion to reinstate visitation. On September 27, 1995, the Family Law Commissioner Pro Tem ruled that the parenting plan did not give Reiter the authority to suspend visitation rights, but only the power to recommend alterations. The court reinstated Jacqueline's visitation.

Michael sought revision of this ruling. A Judge of the Superior Court set the ruling aside in its entirety, ruling that the terms of the parenting plan authorized Reiter to suspend visitation rights. The court then suspended Jacqueline's visitation until she agreed to give Mikhail his medicine, obtain independent counseling, and stop sleeping with ...


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