The Progressive Lawyer: The Emerging Role of the Parenting Coordinator – Part Three
by Curtis J. Romanowski, Esq.
In Part One of this article, we defined the newly evolving role of the parenting coordinator and discussed various statutory authorities for the PC role; the role’s purpose and scope; how PCs are appointed; what decision-making authority PCs have or do not have; the timing of PC appointments; and the court’s jurisdiction to make such appointments.
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In Part Two, we dealt with additional PC topics including: Continuing jurisdiction; judicial review of PC decisions or recommendations; PC proceedings; ex parte communications; confidentiality; referral for third-party services; access to non-parties, children and privileged information; submission and exception to PC recommendations or reports; and PC immunity.
Here in Part Three, we will conclude by providing a comprehensive PC order of appointment, which can be modified to fit just about any desired PC situation .
ORDERED, as follows:
| 1. | A Parent Coordinator shall be appointed as follows: | ||||
| a. | _____________________________________ is hereby appointed as a Parent Coordinator to assist the parties in resolving disputes as to custody, parenting time or any related issue affecting the parties’ child. | ||||
| b. | Expense Shared Equally. Initially, the parties shall equally share financial responsibility to pay the Parent Coordinator (the Court reserves the right to resolve any objection to the charges made and to redistribute the cost on a pro rata or other basis if appropriate.) Each party shall promptly pay one‑half of any reasonable bill submitted by the Parent Coordinator. The Court shall enforce payment of any amounts owed to the Parent Coordinator by either party through contempt proceedings, if necessary. | ||||
| c. | General Responsibilities of Parent Coordinator. The Parent Coordinator shall assist the parties and the child to promote the child’s best interest in general. The Parent Coordinator is entitled to communicate with the parties’ child, health care providers, psychological providers, teachers and any other third parties deemed necessary by the Parent Coordinator. The parties shall cooperate with the coordinator by executing any necessary releases. | ||||
| d. | Role of Parent Coordinator. The Parent Coordinator shall: | ||||
| i. | Make any recommendations relative to enforcing any shared parenting plan and parenting schedule and to minimize conflicts between the parties by addressing the particular patterns of behavior for the parents. | ||||
| ii. | Minimize conflict, loyalty binds and unnecessary stress for the child. | ||||
| iii. | The Parent coordinator has the following broad responsibilities: | ||||
| (1) | Recommend approaches that will reduce conflict between parents; | ||||
| (2) | Recommend compliance with any parenting plan or parenting schedule ordered by the Court; | ||||
| (3) | Recommend outside resources as needed such as parenting classes or psychotherapy; | ||||
| (4) | Monitor parenting plan or parenting schedule and mediate the parents’ disputes concerning parenting issues | ||||
| (5) | Write detailed guidelines or rules recommended for communication between parents and practicing those guidelines or rules with the parents. If parenting skills are lacking, the Parent Coordinator shall work with one or both parents to teach those skills; | ||||
| (6) | Recommend how a particular element of the parenting plan or schedule shall be implemented including, without limitation, holiday or vacation planning, logistics of pick up and drop off, issues dealing with stepparents and significant others; | ||||
| (7) | Ensure that both parents maintain ongoing relationships with the child; and | ||||
| (8) | Recommend a final decision on any parenting issue over which the parents reach an impasse, by submission of a written recommendation to the parties and their counsel. | ||||
| (9) | Educate the parents with a program such as Cooperative Parenting in the area of: | ||||
| (a) | effective communication and negotiation skills | ||||
| (b) | effective parenting skills; | ||||
| (c) | how to disengage from each other when it leads to conflict; | ||||
| (d) | how to keep their child out of the middle; | ||||
| (e) | the sources of their conflict and its effects on the child, when a loyalty bind is occurring, the Parent Coordinator shall point out and help both parents stop the behavior leading to this dilemma for the child | ||||
| iv. | The Parent Coordinator shall maintain communication among all parties by serving, if necessary, as a conduit for information. The Parent Coordinator is not the ally of either parent and the Parent Coordinator is not a neutral mediator. The Parent Coordinator’s role is active and specifically focused on helping parents work together for the benefit of the child. The Parent Coordinator’s fundamental role is to minimize the conflict to which the child is exposed by the parties. | ||||
| v. | The Parent Coordinator is not a custody evaluator, nor can they change the amount of custodial time either parent has with the child. Making decisions to place the child in the residence and custody of one parent would seriously compromise the Parent Coordinator’s balanced role. The Parent Coordinator does not have the power to recommend changes relevant to the primary residence of the child. The Parent Coordinator may make temporary changes to reduce conflict for the child or to better understand the needs of the child. Temporary changes are those changes that would not expand more than a few weeks and might include slight changes in the transfer location, time of phone calls and other parenting issues. The Parenting Coordinator shall also not be called as a witness in any Court proceedings regarding the change of primary residence, except by Order of the Court for good cause shown in exceptional cases such as when the Parent Coordinator has directly witnessed relevant facts. | ||||
| vi. | Assistance provided by the Parent Coordinator is not intended to be a crisis service, except when a crisis directly impacts upon the child. Unless an emergency directly impacts upon the child, neither parent shall contact the Parent Coordinator outside normal working hours. | ||||
| vii. | The Parent Coordinator shall not address significant financial matters. | ||||
| e. | Meeting with the Parent Coordinator: | ||||
| i. | The Parent Coordinator may meet with the parties, the child and significant others, jointly or separately. The Parent Coordinator shall determine if the appointments shall be joint or separate. The Parent Coordinator shall determine if the joint appointments are video or audio taped for education purposes. The tapes may be reviewed by either parent during or after their appointments. | ||||
| ii. | Both parents shall contact the Parent Coordinator to schedule appointments. Appointments may also be scheduled when the Parent Coordinator requests. | ||||
| iii. | Each parent should direct any disagreements or concerns regarding the child to the Parent Coordinator. The Parent Coordinator shall work with both parents to resolve the conflict and if necessary, shall recommend an appropriate resolution to the parties and their counsel. | ||||
| f. | Written and Oral Reports and Appearance in Court: | ||||
| i. | At the completion of the sessions, the Parent Coordinator may submit written reports to the parties and their counsel describing any conflicts and the Parent Coordinator’s recommended resolutions. The Parent Coordinator may also report to the parties and their counsel on parental compliance with and parental attitudes about any element of the parenting plan as amended by agreement or the parties or decided by the Parent Coordinator. Copies of all reports to the Court shall be sent to the parties and their attorneys, not to the Court directly. | ||||
| ii. | If either parent wants the Parent Coordinator to testify on any matter, he or she must file a motion and show good cause in the motion and at the hearing why the Court should require the Parent Coordinator to testify. The Parent Coordinator must be given a copy of the motion. If the Parent Coordinator is required to testify, a new Parent Coordinator may be assigned by the Parent Coordinator to be available to the family after the hearing date. | ||||
| g. | Terms of Appointment: | ||||
| i. | The Parent Coordinator is appointed until further Order of the Court. The Parent Coordinator may be discharged by the Court, or by written agreement of the parties. The Coordinator may apply directly to the Court for a discharge, and shall provide the parties and counsel with notice of the application for discharge. The Court may discharge the Coordinator without a hearing, unless either party promptly requests a hearing on the application. | ||||
| h. | Other: The Parent Coordinator may, by correspondence to the Court, with a copy to the parties, request clarification and/or directions of his/her role in this matter. | ||||
| Recently, this writer was given the opportunity to address the New Jersey Supreme Court, in opposition to a proposed Rule of Court, which would have specifically provided for the role of Parenting Coordinator, had it been approved. The proposed new Rule and model order of appointment, both ultimately defeated, could have created a litany of problems, due primarily to defining an overly broad PC role, while failing to establish sufficient accountabilities and due process safeguards. The following except from this writer’s May 23, 2006 argument to the New Jersey Supreme Court is included below: | |||||
| Good morning Madam Chief Justice, Associate Justices. May it please the Court. Respectfully, Rule 5:8-7 should not be approved. | |||||
| First off, it is unnecessary… | |||||
| Judges are currently appointing them . Our Judges already have the power to appoint PCs. Those who believe that having a PC in a given case is in the best interests of the children, are free to do so without being fettered by a specific rule. | |||||
| Specific Orders of Appointment will suffice . Judges can create detailed Orders of Appointment, which clearly define the PC role in every case where they believe one is necessary. To date, there is no standard definition of PC, and no real data about PC effectiveness, its impact on families, or its effect on the volume of litigation, one way or the other. | |||||
| Flexibility needed . This is why we must afford our Judges flexibility in selecting someone to serve as a PC, and in specifically defining that role in any given case… There is no sound reason why Judges should be forced to select PCs from the mental health care community, absent consent of the parties. Even the AFCC’s PC Guidelines specify that lawyers are appropriate candidates for these appointments. In cases where the appointment of a mental healthcare professional may be indicated, this should be the Judge’s call. Judges do not ordinarily appoint GALs or PCs who are strangers to them. This choice should be consistently left to the Jurist, unconstrained. Individual Judges, as opposed to national or regional surveys, have the advantage of being able to assess how PCs have affected their cases over time, and will take those learning experiences into account in moving forward. | |||||
| Overuse and misuse. am also somewhat concerned, if only anecdotally, that the inclusion of a specific PC Rule will lead to overuse in inappropriate cases. To assume that PC appointments will cut down on the amount of motion practice is myopic. Conversely, I see the over-broad use of PCs as nothing but trouble… | |||||
| [T]he proposed Rule, stating [in part] that the PC shall have authority to change or modify a Court order, if the parties consent , should be rejected. No authority should be given to a PC to modify Orders of the Court, consent of the parties notwithstanding. Parties are free to request modification of Orders by way of Consent Order, but only to the extent it is appropriate and always subject to the Court’s approval. Any Rule purporting to enable parties to confer Judicial authority upon a non-Jurist through mere mutual consent must be rejected. | |||||
| [T]he proposed Rule has serious problems, as does the proposed Model Order . What we have [as outlined in the proposed new Rule and Model Order] is essentially a three-prong process: | |||||
| First we attempt to mediate . Failing that, we enter into non-binding arbitration . Then, if the arbitrated recommendation is not acceptable, either party may approach the Court for a determination of the issues . | |||||
| Well… here we are in motion practice again. Furthermore, in connection with these applications, either party may submit the PC’s recommendation (presumably to the Court). The Model Order adds that the Court may assess counsel fees in connection with these applications. | |||||
| These provisions are problematic and coercive. Respectfully, no sanctions should be imposed for failure to abide by a recommendation (necessarily a “net opinion�?in many cases), without having any basis for determining if the recommendation was prudent. A PC recommendation is no substitute for a Judicial determination, following the entry of evidence and testimony. | |||||
| In any event, such an application, attaching the PC recommendation, is likely to trigger a Hearing. The decision to permit the submission of rejected recommendations to the Court in the first instance, should be left to the Judge and not to a Rule. Allowing the recommendation to be submitted may very well over-complicate things… | |||||
It is hoped that this Three-Part Article can be useful to practitioners and jurists alike in the appropriate and positive furtherance of the PC concept.
– CJR