Service or Emotional Support?

I recently had a client ask me if they could travel with their dog. If you’ve flown lately you’ve probably noticed an increase of people traveling with their pets. In years past, most airlines permitted small animals, under approximately 20 lbs., to travel in a pet carrier that fit beneath the seat. However, the rules have changed.

Most airlines permit services animals  and emotional support animals to fly with their owner. But there is a clear difference between a service animal and an emotional support animal.

Pursuant to 28 C.F.R. § 35.104:

Service animal means any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition. The work or tasks performed by a service animal must be directly related to the individual's disability. Examples of work or tasks include, but are not limited to, assisting individuals who are blind or have low vision with navigation and other tasks, alerting individuals who are deaf or hard of hearing to the presence of people or sounds, providing non-violent protection or rescue work, pulling a wheelchair, assisting an individual during a seizure, alerting individuals to the presence of allergens, retrieving items such as medicine or the telephone, providing physical support and assistance with balance and stability to individuals with mobility disabilities, and helping persons with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors. The crime deterrent effects of an animal's presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition.

Service animal are not considered “pets” but are treated  like any other accommodation under the Americans with Disabilities Act, such as a wheelchair or prosthetic limb. However, pursuant to 28 C.F.R. § 35.136, a public entity may ask an individual with a disability to remove a service animal from the premises if: (1) The animal is out of control and the animal's handler does not take effective action to control it; or (2) The animal is not housebroken.

Service animals are limited to specifically trained dogs and miniature horses. Its true! According to 28 C.F.R. § 35.136, a public entity shall make reasonable modifications in policies, practices, or procedures to permit the use of a miniature horse by an individual with a disability if the miniature horse has been individually trained to do work or perform tasks for the benefit of the individual with a disability.  But a public entity may consider  (i) The type, size, and weight of the miniature horse and whether the facility can accommodate these features;(ii) Whether the handler has sufficient control of the miniature horse; (iii) Whether the miniature horse is housebroken; and (iv) Whether the miniature horse's presence in a specific facility compromises legitimate safety requirements that are necessary for safe operation.

If a miniature horse trots into a public entity, including an airport, the public entity cannot ask about the nature or extent of a person's disability, but may make two inquiries to determine whether an animal qualifies as a service animal.

1. A public entity may ask if the animal is required because of a disability.

 2. The public entity may ask what work or task the animal has been trained to perform.

According to the Transpoirtation.gov website, under the Air Carrier Access Act (ACAA) a service animal is any animal that is individually trained or able to provide assistance to a person with a disability; or any animal that assists persons with disabilities by providing emotional support.  Documentation may be required of passengers needing to travel with an emotional support or psychiatric service animal.

The laws and regulations regarding emotional support animals are far more lenient than those related to service animals. Pursuant to 14 C.F.R. §382.117 (e): If a passenger seeks to travel with an animal that is used as an emotional support or psychiatric service animal, you are not required to accept the animal for transportation in the cabin unless the passenger provides you current documentation (i.e., no older than one year from the date of the passenger's scheduled initial flight) on the letterhead of a licensed mental health professional (e.g., psychiatrist, psychologist, licensed clinical social worker, including a medical doctor specifically treating the passenger's mental or emotional disability) stating the following:

(1) The passenger has a mental or emotional disability recognized in the Diagnostic and Statistical Manual of Mental Disorders—Fourth Edition (DSM IV);

(2) The passenger needs the emotional support or psychiatric service animal as an accommodation for air travel and/or for activity at the passenger's destination;

(3) The individual providing the assessment is a licensed mental health professional, and the passenger is under his or her professional care; and

(4) The date and type of the mental health professional's license and the state or other jurisdiction in which it was issued.

Airlines are never required to accept snakes, reptiles, ferrets, rodents, sugar gliders, and spiders. Pursuant to 14 C.F.R. §382.117(f): You are never required to accommodate certain unusual service animals (e.g., snakes, other reptiles, ferrets, rodents, and spiders) as service animals in the cabin. With respect to all other animals, including unusual or exotic animals that are presented as service animals (e.g., miniature horses, pigs, monkeys), as a carrier you must determine whether any factors preclude their traveling in the cabin as service animals (e.g., whether the animal is too large or heavy to be accommodated in the cabin, whether the animal would pose a direct threat to the health or safety of others, whether it would cause a significant disruption of cabin service, whether it would be prohibited from entering a foreign country that is the flight's destination). If no such factors preclude the animal from traveling in the cabin, you must permit it to do so. However, as a foreign carrier, you are not required to carry service animals other than dogs.

Sleep easy knowing that you will not have to sit next to someone’s emotional support snake on your next flight!

Submitted by: Jennifer Lorenz

Neighborly Disputes of the Arboreal Variety: Encroachment Trees

Imagine that you have a neighbor with a splendid, towering cottonwood tree that sits so close to your property line that roots and branches actually cross over into your property.  In the warmer months, the tree provides your yard with a lovely bit of shade, and you build a small stone patio so that you can enjoy your yard in the respite of the tree’s umbral aegis. These circumstances proceed uninterrupted for a decade, until your neighbor sells their property and new property owners move in. These new owners, however, decide they don’t like the tree and tell you one day as you chat over the fence that they intend to chop the tree down.  You ask them to reconsider, but they are resolute.  Do you have any legal recourse to prevent the impending tragedy?

            As you may have guessed, the answer is “probably not.”  As with most things in the law, though, the devil’s in the details.  Your ability to block the proposed felling depends on your possession of a cognizable legal interest in the tree.  The leading cases in Colorado regarding the allocation of legal interests in such trees are Rhodig v. Keck, 421 P.2d 729 (Colo. 1966) and Love v. Klosky, 413 P.3d 1267 (Colo. 2018).  The Supreme Court of Colorado has decided that trees, in these border-line cases, fall into one of two categories: so-called “true boundary line trees,” and “encroachment trees.” “True boundary line trees” are “trees deriving their nourishment from roots extending on both sides of the [property] line, and with bodies so directly over the line, and necessarily on both sides of that line, that it could not be determined upon which side of the line the tree was originally planted.”  DuBois v. Beaver, 25 N.Y. 123, 126 (1862).  “Encroachment trees,” on the other hand, are simply those that “began life entirely on one person’s property only to migrate partially to another’s.”  Love, 413 P.3d at 1272.

            If your tree is a “true boundary line case,” congratulations, you and your neighbor are tenants-in-common with respect to the tree, meaning you have a legally cognizable property interest in the tree.  If, however, the locus of the tree’s inception is not so indeterminable, such as in our hypothetical, then the tree is simply an “encroachment tree.”  In such circumstances, the owner of the tree is the owner of the land on which the tree was planted.

            But let’s assume slightly different facts than those above.  Assume, instead, that, years ago, your neighbor came to you and asked if you’d like to split the cost of a sapling to be planted near the joint property line, because he wanted some shade and thought you might enjoy that as well.  You agree, and you and your neighbor jointly plant the sapling.  Or, imagine that you neighbor plants the tree himself, but, recognizing the benefit you will derive from it, you offer to help him maintain the tree, and he accepts.  Or, imagine that, perhaps, at this time, your properties were not divided by a fence, and you and your neighbor agreed to use the tree as a landmark that separated where one party’s property ended and the other’s began, only to later learn that the tree was in fact planted entirely within your neighbor’s property.

            Under those circumstances, though the tree is technically an “encroachment tree” located entirely on your neighbor’s property, you nevertheless are a tenant-in-common with respect to the tree.  However, the burden will be on you to prove these circumstances, so save receipts, photos, e-mails, or anything else that might suggest the requisite circumstances exist!

Submitted by: Nathaniel Gaffney     

Finding the Right Attorney

Finding and hiring an attorney can be an overwhelming task, even for those already familiar with the legal system or who have worked with an attorney before.  The following are some tips on finding the right attorney for your legal needs.

1)  Find an attorney that has experience handling your legal issue.

This is rather obvious, but finding an attorney that has experience working with your type of case or issue on a regular basis is key—especially for issues that are particularly nuanced or complex.  Most attorneys specialize in certain areas of law, but it’s important to try and go one step further and find someone who is familiar with your specific issues.  Finding attorneys that work in general areas—family, probate, patent, natural resource law, for example—is generally easy to do.  But once you find some options, it’s important to do a little extra digging to see if the attorneys you’ve identified have worked in that particular field or with your particular issue.

Finding the right attorney for your needs obviously requires some research.  Starting with a Google search is perfectly fine and will give you an initial sense of who in your area you might want to research further.  But, we all know Google can often lead to an overwhelming amount of results—leaving you nearly back where you started.   

To help narrow down your search and/or get feedback from actual people in your community, social media can be very helpful.  Asking for recommendations on Facebook or Nextdoor (a neighborhood resource app that lets users post and interact on various neighborhood-related things), can yield very helpful results.  You’ll also find you’ll get recommendations for smaller firms or solo practitioners that wouldn’t necessarily show up on the first few pages of a Google search.

Finally, your county’s Bar Association is an excellent resource for finding an attorney.  Local bar associations often keep directories sorted by practice area, and a visit to their website can help you avoid the clutter of Google and start narrowing down potential options.  Don’t hesitate to call your local bar association to ask any questions you may have.

2)  Narrow your options, but expand your research

Once you’ve narrowed your choices down to a few options, the next step is performing some more specific research.  An obvious place to start is the attorney (or their firm’s), website, which will give you some general background as to both.  This also helps you get a “feel” for the firm—an important factor to consider given you’ll be working with your attorney closely on issues that are very important to you.  Most attorneys also have their bio and resume listed on their website, giving you a sense of their background and experience.  Again, this helps in getting a sense of whether the attorney is the right person for your case and has experience handling your specific legal issue.

Next, and perhaps more importantly, call the firm to ask any questions you may have.  A firm’s website likely won’t have all the answers you need before retaining an attorney, so speaking with an actual person is critical.  Often the attorney or someone working for them can answer specific questions about their practice area, experience, and yes, their fees (another major factor to be considered).

3)  Meet with your prospective attorney

The final step is meeting face-to-face with your prospective attorney.  Though this seems like another obvious tip, it is critical you get a sense of their personality.  You want to find someone you can work with on complex and sensitive issues, and someone you obviously trust to handle those issues.  In a way, you’re interviewing the attorney to make sure they’re the right fit for you.  A few less obvious topics you’ll want to address are making sure the attorney has the time and resources to devote to your case.  You can also ask about the attorney’s typical strategy in approaching a case like yours and make sure you’re both on the same page about your needs and goals.  There’s simply no substitute for an in-person meeting to make sure your attorney is the right fit for you.

Finding and hiring an attorney can be a stressful and time-consuming task, especially when you’re already dealing with a stressful and time-consuming legal issue.  But, the importance of thoroughly researching and vetting your options cannot be overstated.  Hopefully, the tips above can help make the process of finding the right attorney a little less daunting.

Submitted by Nathan A. Klotz

Domestic Relations Proceedings and Various Potential Experts

While a Dissolution of Marriage proceeding in Colorado can be completed in as little as 91 days, it is more typical for a case to take between six months to one year.  This additional time is often due to the need to involve various experts.  A complete understanding of the potential experts involved in a family law matter can help ensure your case is completed as quickly as possible.

The need for experts may come from an unresolved issue with parenting time, disagreements regarding a spouses’ earning capacity, or concerns regarding the value of a business.  When parties decide they are no longer in a place to stay married, finding common ground and peace in the chaos can seem near impossible. This is where the assistance of an expert can be extremely useful in resolving family law disputes relatively amicably.

Domestic relations cases utilize a number of different experts for a wide variety of matters. Below is an outline of some of the most commonly used experts and a general explanation of how they may be useful in resolving your case.

Mediator: A mediator is simply a third-party that attempts to help people involved in a conflict come to a mutual agreement. In most counties in Colorado, the Court will require the parties to attend mediation in an effort to prevent the need for time-consuming and costly litigation. If a party is able to attend mediation and come to an agreement on all outstanding matters, the Court will allow them to complete their divorce proceeding with very little involvement by the Court. Mediators have a wide range of backgrounds and skill sets.  When deciding which mediator to use for a domestic relations matter, it is vital to look for a mediator with specific experience in resolving family law disputes.  A party to a divorce would be wise to select an attorney or former judge with extensive family law experience as their mediator. 

Real Estate Appraiser:  One of the most common disputes during a divorce proceeding arises when one party wishes to remain in the marital home.  In most cases, this will require the party to “buy-out” the other parties’ interest in the home.  In order to determine a fair “buy-out” price, the parties must agree to a fair market value for the home.  Naturally, the party wishing to remain in the home will assert a relatively low value, while the party receiving the “buy-out” will want to assign the property a higher fair market value.  To resolve these types of disputes, many parties to a divorce proceeding will utilize the services of a professional real estate appraiser.  While the opinion of a real estate appraiser is not binding on a court, a professional appraisal performed by a qualified expert can go a long way towards allowing the parties to reach a settlement, or if necessary, to present powerful evidence regarding the value of the property to the Court at trial. 

Parenting Coordinator/Decision Maker (PCDM): A Parenting Coordinator (“PC”) is a mutually agreed upon third party that assists families with resolution of disputes regarding the allocation of parental responsibilities and in implementing the terms of the parenting plan.  The PC can develop guidelines for communications between the parties, inform the parties as to appropriate resources, and assist the parties in developing strategies to minimize conflict.  Notably, while a PC can try and assist the parties in resolving disputes, a PC is not authorized to resolve the dispute themselves.  This is role is reserved for a Decision-Maker (“DM”).  A DM fulfills many of the same roles as a PC, but with the additional ability to actually make a binding decision regarding a disagreement if the parties are unable to reach an agreement on their own.     Because the roles of a PC and DM are similar and often overlap, parties to a domestic relations proceeding may see the roles combined as a “PC/DM”.  A PC/DM can be useful in resolving post-decree issues that are too minor to justify involving attorneys/legal system, but nevertheless require resolution.  Frequent subjects on which PC/DMs are involved included choice of school for the minor children, disputes regarding extracurricular activities, medical issues, and travel issues.

Child and Family Investigator (CFI)/Parental Responsibilities Evaluator (PRE): A Child and Family Investigator (“CFI”) or Parental Responsibilities Evaluator (“PRE”) is usually a licensed mental health professional with specialized knowledge in the field of childhood development. Typically, a CFI or PRE is appointed by the Court when the parties are unable to agree on parenting time and/or decision-making responsibility for the minor children. The CFI/PRE will investigate the disputed issues, meet with the parties and the children, contact collateral witnesses, and issue an expert report detailing their recommendations as to how to allocate parental responsibilities in the children’s best interests.  A CFI is the less intensive option and has a maximum fee of $2,750 per case.  The PRE process is more intensive and time-consuming.  There is no maximum fee for a PRE.  With many PREs charging between $200 and $350 per hour, it is not unusual for PREs fees to exceed tens of thousands of dollars.  The PRE process is typically utilized in cases with serious concerns regarding a parties’ mental health, drug/alcohol issues, or domestic violence, whereas the CFI process is more appropriate when parties have minor disputes regarding parenting time or decision-making. The benefit of a CFI/PRE in the dispute resolution process cannot be understated. These professionals are often essential to avoiding costly litigation, and furthermore, often lead to a more hand-tailored parenting plan that benefits the minor children.

Vocational Evaluators: A Vocational Evaluator is an expert that helps determine a party’s reasonable earning capacity from appropriate employment. It is not uncommon for one party to have left the workforce for some period of time during a marriage or to be voluntarily under-employed.  This can lead to disputes regarding maintenance and child support, as these calculations are based on the parties’ respective incomes.  A Vocational Evaluator meets with the subject of the evaluation, gains an understanding of the subject’s skills, abilities, training, and qualifications, then reviews the current labor market to determine a reasonable earning capacity.

Business Valuator: A Business Valuator is an expert that is used to establish the potential value of a business.  This type of valuation is needed when parties’ to a marriage own businesses either together or individually. A business can often be the single largest asset in a divorce proceeding, and it is crucial to obtain an expert opinion as to the value of any business asset.  The valuation of a business is a highly complex task requiring the services of a professional.  The income, assets, liabilities, and growth prospects can all impact a business’s valuation, and it is difficult if not impossible for parties to value a business without the assistance of a trained professional.

Submitted by Joshua E. Anderson