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

Categories: Divorce & Family Law

The Progressive Lawyer: The Emerging Role of the Parenting Coordinator- Part Two

by Curtis J. Romanowski, Esq.

There is no legal code in the majority of the jurisdictions that accurately describes the functional role of the Parent Coordinator (PC). Currently, most jurisdictions do not sufficiently address issues of due process and very seldom outline protocols for gathering evidence or conducting “hearings”.The functional roles of the PC,which may often be an amalgam of inter-disciplinary roles are often left up for grabs.

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.

Part Two of this Article deals 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.

Continuing Jurisdiction. Jurisdictions using the PC model find themselves grappling with the issue of whether or not judges have the authority to initiate a PC intervention destined to continue beyond the conclusion of a case, which case would then no longer be considered pending. At least one recent Appellate level decision has held that a trial court lacked authority to appoint an attorney for the children in a dissolution case post judgment, because no action was pending.

Some examples of how a Court may attempt to address continuing jurisdiction issues include:

(1) Any Judge having domestic relations or juvenile jurisdiction might, at the request of all parties, refer a case or a designated issue to a PC. Any PC decision might then be appealed and heard de novo by the court. Accordingly, the filing of a motion asking a court to enter judgment upon a PC’s preliminary decision or award, or an appeal of the award, could provide an acceptable procedure for invoking the trial court’s continuing jurisdiction in a post-decree parenting dispute that has been arbitrated.

(2) Appointment can be made pursuant to a State-specific Statute providing, for instance, that PCs may be appointed for the purpose of monitoring compliance with court orders, and of providing parents with problem solving, conflict management and parenting time coordination services or other services approved by the court, while then inferring that this authority extends to post-judgment matters.

(3) Appointing the parenting coordinator under State Court Rules or Codes of Civil Procedure. PCs appointed by agreement of the parties would not require that a case be open or that an action be pending before the court to function as a parenting coordinator in the case.

Judicial Review of PC Decisions/Recommendations. Generally speaking, the court may not absolutely delegate decision-making authority regarding children to third parties. Rather, the court must exercise its parens patriae powers by retaining the right to review such decisions, which should be more accurately referred to as “recommendations”.To be quite clear on this point, even stipulations between parents remain subject to judicial review prior to being entered as consent orders.

While negotiated agreements between the parents are certainly preferred, PCs are more often than not employed in situations where parents are not likely to come to terms on there own, with or without main stream custody/parenting mediation. The latter scenario obviously involves the higher level of complexity. In cases where the parties have agreed to use the PC as a stop-gap measure whenever negotiations reach an impasse, the PC assumes the role of arbitrator.

Although this writer generally prefers models employing the non-binding arbitration of custody and parenting decisions, some jurisdictions permit PCs to render final decisions, per se, which cannot be overturned by the court except for relatively narrow instances where the PC acts beyond the scope of his or her authority, where there is an abuse of PC discretion, or where there is malfeasance, conflict of interest or even frank fraud by the PC. The limited grounds for such relief are typically set forth in the statutes which enable such parenting-related arbitrations.

In a more conventional version of the parenting coordinator model, a set of written recommendations or a written report is filed with the court, in which the PC sets forth various parenting time and decision-making approaches for the family. Subsequent de novo review of PC-arbitrated decisions in parental responsibility and child support matters is typically addressed in the enabling statute.

Obviously, this process is not at all like parenting mediation, where the content of the mediated sessions is confidential and where a failed mediation attempt triggers a return from ADR to litigation. In the case of an unsuccessful mediation, the court is left to determine child-related issues without the benefit of the custody mediator’s impressions and suggestions for the family. This distinction is analogous to some of the differentiations between the earlier collaborative divorce models and the more highly evolved and resource-sparing Progressive Divorce approach. In the context of collaborative divorce, in the event the collaborative law engagement does not result in settlement of the case, the baby is thrown out with the bath water in accordance with the arguably premature and mandatory entry of the parties and their attorneys into a mutual recusal pact. Within the constraints of that significantly flawed model, failure results in the immediate termination of both attorneys, as well as the disallowance of any work product, expert opinion and discovery. These “sinking costs”, ‘are therefor contractually lost.

The fact that additional decision-making data from the PC is conserved, regardless of the parties ability to reach agreement, could well present a significant draw for the PC model to parents and judges alike. The involvement of the PC, along with the sinking costs of enlisting the PC’s services to the parents, are not sacrificed. The PC’s knowledge of the children’s needs, the family’s dynamics, the underpinnings of their continuing conflicts, as well as the PC’s suggestions for what could ostensibly work for any given family can be shared with the parents, attorneys and with the court.

PC Proceedings. Wide latitude is typically accorded the PC as to how sessions with family members are to proceed. For the most part, these sessions or hearings can best be described as “informal. Although the PC is not typically required to make a record of the proceedings, some jurisdictions permit the PC to videotape or record proceedings with parents at the PC’s sole discretion.

While meetings with parents may be scheduled either separately or together, in this writer’s opinion, the better practice is to refrain from the use of one-on-one caucuses between the PC and an individual parent. Experience has shown that any added candor that might be achieved from one parent through caucusing is more often than not offset by compromising the trust of the other parent. This remains the case, even where both parents are offered the opportunity to individually caucus with the PC. The same trust-rippling phenomena obtains to mediation. The PC almost invariably meets with any children seven years of age or older. If the PC is uncomfortable interviewing the children, the PC should be permitted to enlist the services of a pediatric mental health professional, much in the same manner as many guardian ad litem rules permit today.

Ex Parte Communications. Some jurisdictions permit the PC to communicate ex parte with attorneys, while others do not. It is essential for both partie attorneys to be enrolled in the PC process for it to succeed. Most PC processes provide that parents may communicate ex parte with the PC. Many courts permit the PC, by stipulation or order, to immediately communicate with the court in emergent situations. More often than not, such emergency disclosures result in a substitution of PCs, and the re-designation of the former PC as a potential witness, subject to examination, as is the case with most guardian ad litem appointments. Other jurisdictions flatly prohibit such communication.

Some orders of appointment may permit, while at the same time discourage ex parte communication with parents and attorneys. This is particularly true where PC decisions are made on the basis of those communications. In those cases, the PC is acting as a reviewable arbitrator, and must abide by a code of conduct similar to that of the Judiciary. Naturally, these orders also prohibit ex parte communication with the judge. Other orders of appointment may specify that the PC may not communicate with attorneys ex parte, except as pertains to routine scheduling matters. They may also permit the PC, by stipulation or order, to communicate immediately with the court in emergent circumstances.

Confidentiality. As a general rule, the PC process is not considered confidential. Similar to the guardian ad litem role, communications with the PC are not confidential and the PC can be called as a witness to testify to the court and to offer opinions or recommendations regarding custody or parenting time or issues or both.

Despite the fact that communications with the PC may not be confidential or privileged, the parent coordinator should typically not disclose any information about the parties or the children, except to the extent reasonably necessary to fulfill the stated duties and responsibilities specified in the order of appointment. Court rules or vicinage practices may also require that the PC maintain records of each meeting with any parent and that those records are subject to subpoena, but only by the presiding judge. In such cases, the judge would perform an in camera review of the PC’s records in order to decide whether to release them to the parties. This is similar to the process followed in several jurisdictions in response to a request that the clinical notes of any mental health professional who is currently treating or had been treating one of the parents be reviewed for relevant content, in the best interests of any involved child.

In some jurisdictions, a client may have the privilege of refusing to disclose and of preventing a parent coordinator from disclosing any communications, observations, opinions, work product or case files maintained by the PC. Exceptions to the privilege typically obtain to the PC’s written decisions and to any written memoranda in support of any such decision. In other jurisdictions, although the order of appointment may articulate that the process is to be non-confidential, testimony may be an entirely different story, with the PC not being permitted to testify without the express mutual agreement of the PC and the parties. In still other jurisdictions, the PC may be permitted to appear and must be available to testify at any court hearing upon reasonable notice.

By and large, there is typically no confidentiality concerning communications with the PC. Parenting coordinators may usually communicate with custody evaluators, assessors, screeners, or any other individuals investigating the issues, as directed by the court. Concerning testimony, parties who want the PC to testify at a hearing, other than to report on findings, may be required to deposit a reasonable fee, in advance, to cover the hourly rate of the PC. The order of appointment may also notify the parents that the PC may be required by law to report child abuse, elder abuse, as well as any threats of abuse.

Referral for Third-Party Services. Frequently, the PC will discover that the children or parents require ancillary services provided by third parties. Such adjunct services include but are not limited to psychotherapy, psychological or physical examinations, supervised visitation or parenting time, alcohol or drug monitoring and assessments, and the appointment of a guardian ad litem for the child. The PC has authority, in the context of some models, to determine and order appropriate medical, mental heath and counseling treatment for the parents and children alike. The PC usually specifies whether any mandatory counseling is or is not confidential in such instances.

Other models deem referrals to third-party services as falling under the PC’s recommendation power. In those distinguishable contexts, PC referrals to third-party services are not immediately binding upon the parties. The recommendations are typically made to the court, whereupon the court may choose to set forth the recommendation or some variant of it, in an order, with or without argument or input from counsel.

Access to Non-Parties, Children and Privileged Information. The PC model typically provides for access to any persons involved with family members, such as physicians, mental health providers, school officials, guardians ad litem, custody evaluators, or other professionals involved with the family. The PC nearly invariably meets with children who are seven years of age or greater. It is usually helpful for the PC to either meet with the children, or to receive input from a therapist who knows the children well and meets with them on an ongoing basis. The PC can never be the child’s therapist, however, because of the obvious role conflict and differing standards of confidentiality.

PC models often provide access to all orders and pleadings filed in the case, to school and medical records of the children, and to reports of psychological testings or evaluations which have been performed. In many jurisdictions, the standard stipulation includes detailed language to afford the PC with access to various professionals who might be involved with the family, currently or in the past, and to any other information the PC might find useful to work on the case. Additionally, provisions may be included to permit the PC to hire a consultant to assist in addressing particular issues. Parties are almost always directed to execute releases and consents to facilitate the PC’s investigation. Toward that end, orders of appointment almost invariably contain provisions to the effect that the parties will agree to execute the necessary releases and consents.

Submission and Exception to PC Recommendations or Reports. In some cases, a decision made by the PC is filed as an order of the court, is immediately binding, and subject to review and modification by the court, with the objecting party required to file a motion to bring their objection to the court. A detailed protocol, with procedural requirements and timelines for filing objections should be part of the order of appointment. The standard of review may vary according the likely effect of the decision on the parent-child relationship.

Term, Removal & Resignation. The usual term for PC appointment is about two years. During the period of appointment, the PC may be removed or resign by legal process. The intervention may thereupon end, or the court may arrange for a substitute PC. The reason for resignation is often the PC’s conclusion that the process is no longer or has never been productive, or simply due to the nonpayment of fees. At least one State has a fund set up to subsidize PC involvement. However, the length of the intervention is strictly limited.

PC removal may be requested by either or both parents, by application on notice. The determination of whether or not good cause for the removal exists is typically reserved by the courts. Where both parties request and agree that the PC should be removed, however, the court may grant the application without exercising its discretion in the name of good practical sense. PCs may be reappointed after term expiration by the court, sua sponte, upon application of either party, or at the request of the PC.

Examples of good cause for termination, modification or reappointment. In most cases, whether or not there is a fixed term of appointment, the court should be permitted to terminate or modify the PC appointment for good cause upon application by either party or by a guardian ad litem, at the request of the PC, upon the agreement of the parties and the parenting coordinator, or by the court, sua sponte. Good cause includes, but is not limited to:

1) a determination that the parties no longer need the assistance of a PC;

2) PC is unable or unwilling to continue to serve;

3) an impairment on the part of a party which significantly interferes with participating in the PC process; or

4) lack of reasonable progress over a significant period of time despite the best efforts of the parties and/or the PC.

Some PC processes may involve a grievance procedure to disqualify a PC on any grounds applicable to a judge or arbitrator.

Immunity. In States where the PC is appointed pursuant to court order, the PC typically receives quasi-judicial immunity, notwithstanding the complaints which can nonetheless be filed with professional licensing boards by aggrieved individuals. In States where there is no statutory immunity, local rules might provide that the PC is appointed as an agent of the Court and is not liable for decisions made or information provided while serving in the capacity of PC.

In Part Three, this article will conclude by providing a comprehensive PC order of appointment.