Parenting coordinator (PC) is a relatively new practice used in some US states to manage ongoing issues in high-conflict child custody and visitation cases by professional psychologist or a lawyer assigned by the Court. There are 10 states as of May 2011 that have passed legislation regarding parenting coordinators: Colorado (since 2005), Idaho (2002), Louisiana (2007), New Hampshire (2009), North Carolina (2005), Oklahoma (2001), Oregon (2002), Texas (2005), and Florida (2009). Legislation has been pending in Massachusetts for many years without significant progress.
In September 2014, the Massachusetts Supreme Judicial Court addressed the issue of whether the trial judge had the power to appoint a parenting coordinator without consent of both parties and to give the parenting coordinator binding authority to decide all matters brought before her. The Massachusetts Supreme Judicial Court ruled that the trial judge lacked the power to appoint the parenting coordinator without consent of both parties, and that the broad authority given to the parenting coordinator by the trial judge constituted "an unlawful delegation of judicial authority." Consequently, the Supreme Judicial Court vacated the appointment order.
The Parenting Coordinators are usually of two types: licensed professionals in a mental health or pastoral field of counseling, or attorneys who are in good standing with their state's Bar Association. The parenting coordinator usually meets with both parties regularly, receives day-to-day questions and complaints about any aspect of a party's conduct, and makes recommendations to the parties. These recommendations effectively become obligatory for parents to follow because the Parental Coordinator can later testify in court about the non-compliance. PC have extremely wide range of issues they can decide on parents' relations with their children, including but not limited to:
If either party does not agree with the PC recommendations, then he/she can file a motion with the court to make a decision on the disputed issue. Either party can also ask court to appoint a new PC to the case, but has to provide sufficient evidences to convince the court that valid reasons exist.
Parental coordinators charge parents involved for the time they have spent with the children according to the rates they have established as mental health or law professionals. Parents normally split the charges according to their court order.
Parental Time Coordination is controlled and reviewed by boards of mental health professionals who are often involved in the supervision of parental time themselves. If a complaint to the board is filed, and either the complaining party or the PC believes that the complaint cannot be resolved, either party can file a motion to the court to terminate the PC's services. The boards of mental health professionals have very limited authority in regulation of civil rights violations, because only US state and federal courts have jurisdiction and authority to ensure protection of and to redress deprivation of rights secured by Law.
The Association of Family and Conciliation Courts (www.afccnet.org) has published guidelines and standards for Parental Coordination and Custody Evaluation (currently dated May 2005). These guidelines were reviewed and accepted as national standard by most of the states that allow parenting coordinators. According to the guidelines, PCs should make only minor adjustments to parenting time schedules, but cannot modify the court order:
AFCC Guidelines (2005):
E. A PC shall refrain from making decisions that would change legal custody and physical custody from one parent to the other or substantially change the parenting plan. Such major decisions are more properly within the scope of judicial authority. PCs may need to make temporary changes in the parenting plan if a parent is impaired in his or her functioning and incapable of fulfilling his or her court-ordered parenting functions until further information and assessment is obtained and the court has assumed decision-making responsibility.
In the case of Hastings v. Rigsbee, Court of Appeal in Florida stated "it is never appropriate for a parenting coordinator to act as a fact-finder or otherwise perform judicial functions". The lower court order that was entered on the hearsay testimony of the coordinator was reversed and remanded. Appellate Division of the NY Supreme Court noted in Grisanti v. Grisanti case that "it was improper for the court to condition future visitation on the recommendation of a mental health professional". Similarly, in Rueckert v. Reilly the same court said: "mother correctly contends that the court improperly delegated its authority when it directed the court-appointed expert to determine the frequency and duration of the mother's supervised visitation...In addition, the [lower] court should not have required the mother to pay the cost of visitation without determining the "economic realities," including her ability to pay and the cost of the visitation service." Court of Appeals of Oregon "conclude[d] that the trial court plainly erred in denying husband parenting time without making appropriate findings" and reversed the order that erroneously granted PC the "authority to deny husband parenting time".Idaho Supreme Court stated: "The goal of a parenting coordinator is to empower the parties and minimize conflict in resolving parenting disputes. The judicial function of final decision-maker remains with the court and is not delegated through." There were several other appellate court decisions that prohibited deferral to a parenting coordinator custody and parenting time enforcement issues.
There is a possibility of a conflict of interest when the same psychologist provides Custody Evaluation and appoints himself to Parental Coordinator role, so laws in many states and AFCC guidelines explicitly prohibit this practice. However, in small communities, the choice of PC can be very limited.
If parents are not happy with their parental coordinator, the only way to remove PC from the case is to have judge approve a new Parental Time Modification order. Judges are often opposed to remove parenting coordinator requirement from the high-conflict cases, but court can assign a different PC to the parents when a conflict arises with the current PC. Sometimes PCs continue to be involved with family for several years, which can cost thousands of dollars to both parties. PCs, however, have the right to resign when a complaint is filed against them with psychologists licensing board, or when lawsuit is filled with State or Federal Court. In this case the parties may ask court that a new PC be assigned. There are also recommendations from AFCC that "PC shall not serve when a conflict of interest arises when any relationship between the PC and the participants or the subject matter of the dispute compromises or appears to compromise a PC's impartiality".
While the intent of the bill is laudable, I am vetoing the bill for the following reasons:
1. I am concerned that the bill does not adequately protect families as they try to resolve their conflicts. By authorizing courts to require families to use parenting coordinators, this legislation allows the judicial branch to order parenting coordination without the consent of all parties involved.5. I believe that parenting coordinators should serve as volunteers and not be limited to an exclusive class of licensed professionals.
2. I share the concerns expressed by domestic violence advocates that this bill fails to provide adequate safeguards for victims of domestic violence.
3. I cannot approve legislation that delegates judicial authority to a parenting coordinator and which allows these parenting coordinators to serve in the dual role of judge and jury of parents' or children's rights
4. I am concerned about funding these parenting coordinating programs in the future.-- Jeb Bush, June 18, 2004
According to some lawyers, guideline documents from the psychologist boards have a lot of inspirational statements, but not malfeasance oversight to protect parents and children from abuse of power by PC. In some cases, the court order may be missing mandatory state requirement to set forth the minimum amount and access of parenting time for noncustodial parent, which can cause PC to step into judicial authority territory since they will be able to modify amount of the parenting time or change supervised/unsupervised arrangement of the visits - exceeding the PC scope of authority allowed by state laws and AFCC guidelines. This can cause an appeal of the court order that appointed the PC or a civil rights lawsuit.
Many parents and lawyers find it very hard to justify the reasons for the parenting coordinator's decisions and financial charges. There is a possible conflict of duties since the PC has judicial, executive, and legislative power when deciding on parents' conflict resolution; i.e. they can establish rules, decide whether parents follow the rules, punish parent who do not follow the rules, and get financial interest from the time they spend. This may lead some PC to motivate parents to report every minor problems and suggestions to the PC that can lead to delay of conflict resolution between parents. Because the PC gets paid for his or her involvement, there is a financial incentive and therefore a conflict of interest built into the PC process.
Unlike court proceedings where legal standards govern changes and judgments bring closure to issues, the PC process is open ended and continuous. For example, Massachusetts law requires that the party requesting a change to the visitation schedule show a material and substantial change in the circumstances and also that the requested change is necessary in the best interests of the child. No similar standards and limits apply to the PC process. As a result, one of the parents can repeatedly request meetings to change the schedule without satisfying any legal standards and to otherwise use the PC process to engage the other parent in unnecessary and constant conflict for improper motives and over the same resolved matters. The PC may not be motivated to stop such abuse because escalation and prolonging of the conflict would benefit the coordinator financially.
There also was an official debate in Oklahoma Legislature that parenting coordination can interfere with civil liberties and conflict with Fourth Amendment: Common civil liberties include the rights of people, freedom of religion, and freedom of speech, and additionally, the right to due process, to a trial, to own property, and to privacy. The debate stemmed around the fact that the coordinator can demand to know details about parties conversations, check on conditions of their house, ask questions about their personal life, disregard rules of evidence laws, get copies of documents without a warrant request, make decisions which exceeds their authority, since the PC has the power to control and regulate many aspects of parent time with their child up to recommending court to limit parent contact with child. The Fourteenth Amendment to the United States Constitution says that a state may not make a law that "abridge the privileges or immunities of citizens of the United States" and no state may "deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."Title 42 United States Code Section 1983 states that citizens can sue any person that acting under a color of law to deprive the citizens of their civil rights under the pretext of a regulation of a state.Oklahoma was the first state to pass a PC statute and also the first state to later determine the statute to be unconstitutional. As a result, the statute has been amended, see Title 43 Oklahoma Statutes Supp.2003 § 120.3 for details. Currently, the scope of practice has been limited to rendering only "minor and temporary" decisions. Later, Supreme Judicial Court of Massachusetts also declared parental coordinator appointment unconstitutional, because of the "unlawful delegation of judicial decision-making authority".