The Progressive Lawyer: The Emerging Role of the Parenting Coordinator – Part One

Categories: Divorce & Family Law

The Progressive Lawyer: The Emerging Role of the Parenting Coordinator :Part One

by Curtis J. Romanowski, Esq.

The “Parenting Coordinator”or “Parent Coordinator” is a newly evolving professional role, which is now being implemented in an increasing number of States, with or without the benefit of a specific Rule of Court or statutory authority’ as a means for dealing with high-conflict families involved in domestic relations proceedings before the courts.

The Parenting Coordinator role has frequently been touted for its ability to help families design, execute and review workable parenting plans, while reducing (theoretically, at least) re-litigation rates in cases where high levels of conflict may seriously compromise the family acculturation process. It is particularly useful where close attention and review of individual cases may be helpful for families who have been repeatedly or even incessantly involved in custody or parenting-related litigation. The role may likewise be useful in situations where parents have serious difficulty making important joint decisions about their children, and who therefore could well benefit from assistance coordinating their parenting efforts, or where one or both of the parents may be mentally ill to some extent, intermittently or otherwise. More extreme contexts for PC use might include potentially abusive situations where there are ongoing, albeit unsubstantiated allegations of sexual or other physical abuse of a child.

The PC can likewise be employed to help oversee parental cooperation with orders of the court and to enforce compliance with such orders, or to quickly report to the court when one or both parents fall out of compliance. In high-conflict cases, where even trivial issues are potential sources of even further contention, the PC can also serve as a rationally-balanced arbitrator, available to facilitate the resolution of regularly recurring disputes between parents, while transferring various contention management and interdependent parenting skills in the process.

Statutory Authority for the PC Role. PC statutes per se are only known to exist in a very few of our States. Other jurisdictions rely upon existing statutory authority for the appointment of guardians ad litem, mediators, special masters, or the like. When deciding whether to appoint a PC, courts must consider statutorily mandated factors where they exist, or should prudently examine similar factors in the absence of statute or case law.

Here are some examples of the findings some courts have been required by statute or case law to consider as a pre-condition to appointing a PC:

(1) Are the parents in serious conflict with one another?

(2) Is there continuing parental difficulty in communicating about and cooperating in the care of their children?

(3) Has there been gross litigiousness concerning custody or parenting issues?

(4) Is there a history of domestic violence, verbal abuse, anger and distrust or parental alienation by either parent?

(5) Do any of the children have special needs and are any of the children infants or toddlers?

(6) Do serious concerns exist about the behavior, mental health or substance abuse of either parent?

(7) Are there other compelling reasons why it would be in the children’s best interests to do so?

Purpose & Scope. In very general terms, the relatively few statutes which currently exist to authorize the establishment of the PC role do so, in order to assist the court in creating parenting plans or in resolving disputes regarding parenting time, and to assist parents in designing and implementing parenting plans. Typically, PCS are appointed to provide the court with recommendations, while providing parents with problem-solving, contention management and parenting time coordination services.

However, any potentially broad delegation of judicial authority, such as the appointment of a PC in some instances, should generally require the agreement of both parties. A reasonable and classical concern is that too much authority will be conferred upon the parenting coordinator without an adequate mechanism for judicial review. There is also the worry that a parenting coordinator’s authority not expand to determine affairs typically considered the exclusive province of parents, e.g., religion, social activities of the child, and the like.

As a general rule, courts cannot delegate their decision-making powers. Parties may consent, however, to the appointment of a PC, or the court can appoint one to facilitate implementation of a temporary order (subject to modification), or to address issues raised in motions for enforcement of litigant’s rights or in applications for modification of custody and parenting time provisions of a final order.

Appointment of the PC. Parenting Coordinator appointments, as the preferred practice, should be conferred exclusively by Order of the Court, either at the request of a parent, Guardian ad Litem, Counsel for the Child, or by the court, sua sponte. One frequently employed method is to seek mutual consent from both parents to the appointment. This is prudent, even in those cases where a formal Order making the appointment exists, because it removes any doubt related to issues concerning the sustainability of any court’s power to compel a party to cooperate or submit to parent coordination over that parent’s objection. That being stated, a PC appointment may nonetheless be ordered in some jurisdictions without such mutual consent or over parental objection, but only if particular factual findings are made.

Examples of such specific findings:

a) the parenting issues in the case are complicated and may involve complex family dynamics problems requiring speedy resolution;

b) the case involves mental health or economic issues crucial to the protection of the best interest of any minor children, whose best interests would be served by the appointment;

c) the parties demonstrate a pattern of continuing high conflict;

d) one or both parents are unable to work cooperatively to engage in joint decision making for their child;

e) the parties persist in litigating issues involving or affecting the children;

f) due to the existing level of parental conflict, the children’s relationship with father, mother or both parents has been seriously disrupted;

g) that the only way the children will be able to develop a normal relationship with and spend time with both parents is through the use of a PC with the power to coordinate parenting time, parenting exchanges, communication, and exchange of information and records; or

h) or specific findings that such other conditions exist that warrant the appointment.

Some jurisdictions have chosen to employ a standard Order of Appointment to establish and specifically empower the parenting coordinator. Still others also appoint the PC as a subordinate judicial officer within their Family Court systems. The order can specifically set forth the scope of authority using an itemized menu, and provide for mechanisms for discovery, analysis of findings, decision-making (including ADR), consensual agreement, court review, and for redress of grievances concerning any aspect of the process itself. The Order should ideally state and inform all involved of important terms concerning fees, appointment, reappointment, dis-enrollment and substitution of PCs, and should likewise take care to set forth with specificity how confidentiality, releases and authorizations will be dealt with.

Decision-Making Authority. Depending upon the jurisdiction, PCs are customarily accorded varying levels of authority over an assortment of issues involving parenting time and decision-making concerning the children. Typically, PCs cannot affect changes to a custody determination, issue removal or relocation orders, or change preexisting parenting plans to the extent that parental access to the children would be materially altered.

Some orders of appointment provide for various levels of decision-making, often defined in terms of the likely effect a particular classification of decision could have upon the relationship between children and parents, while linking those discrete levels with procedures affording greater and more immediate access to the court for review or appeal. Decisions that are about one-time or quotidian issues, for example, may be promptly enforceable and reviewed by the court under an abuse of discretion or administrative due process standard. In contrast, other more weighty decisions that would significantly change the existing parenting plan might only be recommended by the PC, necessitating the imprimatur of the court before they would actually go into effect.

Other appointment orders may provide comprehensive menus, checking off specific areas of PC authority. These adjustable standard formats allow the parties to tailor the process to meet their needs.

Common issues the PC is typically authorized to address include the following:

1) Methods of inter-parental communication concerning the children;

2) Agreement on the children’s daily routines;

3) Stipulations as to children’s education – including, but not limited to school choice, tutoring, participation in special education programs, etc.;

4) Enrollment in extra-curricular activities;

5) Daycare, babysitting or both;

6) Settlement of certain payment issues (e.g., for the children’s extra-curricular activities, daycare services, transportation between households, etc.);

7) Issues involving the children’s clothing, equipment or personal possessions;

8) Discipline of children;

9) Provisions for children’s medical, dental and vision care;

10) Psychological testing, counseling or other assessment involving the children;

11) Decisions affecting the alteration of a child’s appearance, including elective cosmetic surgery, elective orthodontia or prosthodontic procedures, haircuts and styles, ear and body piercing, tattooing, tanning, etc.;

12) Timesharing arrangements, including holiday and summer planning;

13) Routine transportation and exchange of children related to parenting plan (drop-off, pick-up);

14) Children’s miscellaneous travel issues, including their drivers- status, whether they can travel alone, etc.;

15) Implementation of any custody and visitation order;

16) Resolution of any disputes not specifically governed by the order – at least until the court acts;

17) Any other parenting type issues, either submitted by the parties or ordered by the court;

18) Overall promotion of the children’s best interests and needs;

19) All other disputed child-related issues as authorized by an order of the court.

Examples of exclusions from PC authority:
1) Resolution of financial issues;

2) Modification of a prior parenting plan, decree or order in a manner that would reduce the total parenting time of either parent during a calendar year, or that would change the designation of residential parent for school purposes;

3) Termination of parenting plans or orders;

4) Creating a limitation regarding supervised parenting time only for either parent;

5) Permitting the relocation of the residence of a child;

6) Deciding the formal or informal religious education of a child.

Although this last example of PC authority limitation concerning the PC not being permitted to decide which religion is to be observed by the children, at least two jurisdictions specifically included religious issues in the list of authorized issues a PC could address.

While often not specifically excluded, the modification of child support orders and awards is typically not included in the plenary lists of general functions a PC can perform in most jurisdictions. However, the Parenting Coordinator might be authorized to determine child support changes, if they were functionally related to parenting time issues, or tied-into parenting time or custody determinations in some material way.

Timing & Jurisdiction. Some States view the PC intervention as appropriate only for post-decree matters, and only after a parenting plan has already been accomplished through other processes, such as mediation or settlement conference by the court. Others appoint PCs to assist in developing initial parenting plans, as well as monitoring and enforcing them after they become incorporated into final judgments or decrees.

Timing of PC appointment examples:

In one instance, the appointment of parenting coordinators would occur after the case has progressed through a comprehensive family court process (such as mediation, parent education, and other cooperative strategies) and after the entry of an order establishing a parenting plan. In this example, the order of appointment may be one of the outcomes of mediation or motion practice. The order may also be one of the conditions of a consensual pendente lite arrangement, or even be a part of an interim recommendation by a custody evaluator, particularly where that evaluator is a joint or court-appointed expert. There is some concern, however, that bringing the PC in before entry of a final judgment would confuse parents as to the ultimate role of the court as the final legal authority in their proceedings.

In another instance, the appointment would occur after an order is in place, whether temporary or permanent, with the PC’s role limited to matters that aid in communication of the parties and the enforcement of the court’s order of custody, visitation or guardianship.

Earlier pendente lite appointments have also been implemented. These are often time-limited appointments, subject to renewal, in order to manage the case pending the outcome of the court process (usually due in such instances to the long periods of time necessary to evaluate and adjudicate high conflict cases).

Other examples include PC utilization in post-decree, high conflict parenting situations, where communication has been difficult and litigation ongoing.

Part Two of this Article is anticipated to include additional PC topics such as: continuing jurisdiction; term of appointment, removal and resignation; PC proceedings; confidentiality and ex parte communications; referral for third-party services; access to non-parties, children and privileged information; PC immunity; submission and objection to PC recommendations or report; and judicial review of PC decisions.