While parenting coordinators are not the answer in every case, for some parties they provide a much-needed alternative for quick dispute resolution.
By Marlene Eskind Moses and Beth A. Townsend, Family Lawyers
Some divorced or divorcing parents experience a particularly high degree of conflict in addressing issues that for others are considered mundane. Each instance of contact, such as attending a child’s sporting event, is an opportunity for parents to act inappropriately or antagonistically. What if such potential confrontations could be mitigated by careful planning, counselling and intervention? Enter the parenting coordinators.
Parenting Coordinators — A Child-focused Alternative Dispute Resolution Process
The use of parenting coordinators in child custody and visitation cases is a relatively new practice gaining wider acceptance in some states. The concept dates back to the early 1990s. The role of this professional is to help parents manage ongoing issues, usually in association with, or in the aftermath of, high-conflict divorces. The Guidelines for Parenting Coordination developed by the Association of Family and Conciliation Courts’ (AFCC) Task Force on Parenting Coordination describes parenting coordination as “a child-focused alternative dispute resolution process in which a mental health or legal professional with mediation training and experience assists high-conflict parents to implement their parenting plan by facilitating the resolution of their disputes in a timely manner, educating parents about how their children’s needs can best be met, and with prior approval of the parties and/or the court, making decisions within the scope of the court order or appointment contract.” The goal of the process is to assist parents in implementing their parenting plan, monitoring compliance with the details of the plan, and resolving conflicts quickly, particularly those that are time-sensitive and involve day-to-day issues.
There are 10 states of which these authors are aware that have passed legislation thus far regarding parenting coordinators: Colorado, Florida, Idaho, Louisiana, Massachusetts, New Hampshire, North Carolina, Oklahoma, Oregon and Texas. Other states have used existing statutes that allow for “mediators” or “special masters” as a basis for appointing parenting coordinators. Still other states, including Tennessee, appoint parenting coordinators absent statutory authority. Where statutory authority is absent, the discretion given to judges to fashion orders in the best interest of litigants’ children could be extended, arguably, to order those litigants to cooperate with a parenting coordinator who is not necessarily bound by rules, unlike a guardian ad litem or Rule 31 mediator. In Tennessee, judges may affirm agreements of parties to use parenting coordinators in the capacity of an appointed parenting issue facilitator so long as there is no attempt to determine parenting issues by a process mimicking binding arbitration. The role of the parenting coordinator should be distinguished from that of an agreed-upon or appointed parenting arbitrator acting as a neutral in non-binding arbitration under Rule 31. The Parenting coordinators typically address day-to-day parenting issues rather than purely legal ones. They may sometimes monitor written exchanges of parent communications and suggest more productive forms of communication that limit conflict. They may assist with implementing minor changes in, or clarification of, parenting time schedules or conditions. They may address visitation exchanges, health care, education, discipline, extracurricular activities and payments for such activities, and religious observances and education. Parenting coordinators can also help parents understand the developmental needs of their children and teach problem-solving strategies. The goal is to help parents learn how to communicate more effectively and thus avoid conflicts that cause them to return to court.
The parenting coordinator usually meets with both parties regularly, fields day-to-day questions and complaints about any aspect of a party’s conduct, and makes recommendations to the parties. In Tennessee, parties can feel obligated to follow these recommendations because parenting coordinators are not necessarily precluded from testifying in court about a party’s non-compliance. It remains uncertain as to whether Tennessee courts might adopt the rationale of Rule 40A applying to guardians ad litem and similarly prohibit parenting coordinators from testifying in court. A parenting coordinator should not offer legal advice or recommendations for physical or legal custody, but it remains unclear whether a parenting coordinator may opine in court upon each parent’s strengths and weaknesses, including observations regarding the effectiveness of the parenting plan. The parenting coordinators are to refrain from making decisions that would change legal or physical custody or otherwise substantially change the parenting plan, as such major decisions are properly within the scope of judicial authority. However, parenting coordinators in some states are given quasi-arbitration power with respect to some of the more day-to-day issues that arise. In such jurisdictions, parenting coordinators are empowered to make decisions when the parents are not able to resolve disputes on their own, to the extent described in the court order, or make reports or recommendations to the court for further consideration.
In Tennessee, while the limits and requirements of parenting coordination are not clearly defined, our courts have attempted to distinguish the boundaries of the parenting coordinator’s decision making authority by holding that parenting issues affecting a child’s best interest may not be determined in any binding way by anyone other than the court. Any parenting agreements reached within the context of Rule 31 non-binding arbitration must be submitted to the court for the best interest determination before the agreement is binding on the parties and the court. From this, it may be inferred that a parenting coordinator may facilitate the resolution of issues but that such a resolution may or may not actually be binding ultimately.
Despite jurisdictional differences as to the binding nature of a parenting coordinator’s decisions, it is universal that parenting coordination is not a confidential process, either with respect to communications between the parties and their children and the parenting coordinator, communications between the parenting coordinator and other relevant parties to the process, or communications with the court. A parenting coordinator may engage in ex parte communications with each of the parties and/or their attorneys, if specified in the order of appointment, parenting coordinator agreement or stipulation. The parenting coordinator typically should have access to any persons involved with family members such as the lawyers, school officials, physical and mental health care providers, the children, any stepparent or person acting in that role, or anyone else the parenting coordinator determines to have a significant role in contributing to or resolving the conflict.
If either party does not agree with the parenting coordinator’s recommendations, that party is free to file a motion in court for the judge’s decision on the disputed issue. Either party can also ask court to appoint a new parenting coordinator but must provide sufficient evidence to convince the court that valid reasons exist.
The Controversy Over Judicial Authority
Not all lawyers and parties are enthusiastic about the practice of parenting coordination. One major complaint is the potential impropriety inherent in delegating an amount of judicial authority to the parenting coordinator. The Tennessee Court of Appeals has fielded such arguments from litigants in recent years.
In O’Rourke v. O’Rourke, the mother argued that appointment of a parenting coordinator (which had been done by entry of an Agreed Order in the Williamson County Chancery Court) denied her access to the courts by unlawfully delegating judicial authority to a non-judicial entity. The appellate opinion noted that it indeed has in the past “expressed concern about attempting to delegate to a ‘Parenting Coordinator’ or any other similarly titled person, whose role and scope of authority do not appear in statute or rule, the authority to modify an existing court order regarding residential placement.” The appellate court ultimately did not rule on the mother’s challenge because the trial court’s last order, which dismissed the parenting coordinator and established a new parenting plan based upon evidence presented to the court, rendered moot any challenges to the coordinator’s appointment or actions.
While the roles of a parenting coordinator and a parenting arbitrator are not necessarily identical, the Tennessee Supreme Court in Tuetken v. Tuetken recently ruled that parenting disputes may not be submitted to binding arbitration because it would eliminate the trial court’s determination of a child’s best interests. This ruling affects the decision-making authority that parenting coordinators should not be misunderstood to actually have. Regardless of the title of the facilitator, parties cannot be bound by a decision made by someone other than the court as it relates to parenting issues affecting the best interests of their children. Parties may submit parenting disputes to non-binding arbitration, and if they agree with the result produced, they must submit the agreement to the trial court for the ultimate determination of the children’s best interests.
Does Problem-solving for Litigants Take a Back Seat?
Another major objection to the parenting coordination process is that it potentially can inhibit the parties’ ability to problem-solve on their own and could additionally have a snowball effect. “Parenting coordination provides a forum for the arguing of minutiae that, in the absence of a parenting coordinator, the parties would have to work out, and learn to work out, on their own, or just let go. … [T]he presence of a parenting coordinator counterproductively requires that the door be left continuously open in the case, generating additional issues. The parenting coordinator’s ideas introduced into the case, the minutiae that now has a forum, and the inevitable iatrogenic problems virtually guarantee that this is a short-sighted nonsolution to court congestion.”
The services of a parenting coordinator may not be warranted if the parents can put aside their differences and co-parent in their children’s best interest. The 2011 Tennessee Court of Appeals opinion in Kelly v. Kelly describes in detail the Robertson County Circuit Court’s admonishment of the parties to make every effort to work together lest they be ordered to work with a parenting coordinator. The trial court suggested guidelines it felt would help the parties work under the existing parenting plan and help them avoid having to return to court. The trial court’s order included the following statements: “The Court has admonished the parties to conduct themselves as adults and … figure out how to make the parenting plan work. … However, it is not the Court’s intention to [tell] the parties how to accomplish this and … they can certainly figure out how to treat one another appropriately when it relates to Father’s visitation with the parties’ minor child. … The Court has admonished the parties in the event that it is necessary that the Court has to do this, the Court will appoint a parenting coordinator which will only increase the costs for the parties, whereas if they work together they can do the same at no cost.”
The Expenditure and the Cost of Civil Liberties
Indeed, another objection to the parenting coordination process is that it can be expensive. Parenting coordinators are sometimes involved with parties for years after the litigation has ended. Furthermore, immediate access to a parenting coordinator can result in one party spending the other’s funds by unilaterally contacting and choosing to bring issues before the parenting coordinator.
Opposition to the use of parenting coordinators also focuses on potential interference with civil liberties including the rights to due process, to a trial and to privacy. A parenting coordinator can demand to know details about parties’ conversations, check on conditions of their residences without a warrant, ask questions about their personal lives, and obtain documents without a subpoena. Opponents criticize the parenting coordination process for “encroach[ing] on family liberty interests, bringing the government behind the closed doors of people’s lives, injecting into the private realm a third party who is not in any way more capable than either of the parents are to make day-to-day decisions about their own families, values, and goals.” It has been further described as allowing “the state via a state-appointed agent to demand information and details about people’s lives that then can be brought back into court by the opposing party, effectively becoming ongoing compelled government discovery, contrary to the Fourth Amendment.”
Others claim that the process simply does not work. “Under any definition, increased child well-being has not been shown to flow from any of the ideas of applied therapeutic jurisprudence … in the family courts. (In fact, increased well-being in the population generally has not been demonstrated by any research from the burgeoning of psychological interventions and therapies over the decades.) Research will never demonstrate any benefits from many of these ideas, including parenting coordination, because credible studies simply cannot be done.”
Finally, according to some lawyers, there is little to no malfeasance oversight, regulation, or recourse against an improperly acting parenting coordinator, aside from removal by the court when there is sufficient proof that it is warranted.
While parenting coordination is not the answer in every case, for some parties it provides a much-needed alternative for quick dispute resolution. All participants in the process, however, must be careful not to allow the process to usurp the court’s role as ultimate arbiter of the children’s best interest.
- “Mediation with the Children in Mind: The Role of the Parenting Coordinator,” Brian James, C.E.L. and Associates
- “Guidelines for Parenting Coordination,” AFCC Task Force on Parenting Coordination, May 2005, page 2
- “Parent Coordination,” Donna Nicholson Ersek, http://www.yourdivorcelawyers.com/ parent-coordination
- The AFCC Task Force on Parenting Coordination; http:www.thelizlibrary.org/parenting-coordination/AFCCGuidelines.pdf
- “Guidelines for Parenting Coordination,” AFCC Task Force on Parenting Coordination, May 2005, page 15
- “Another Alternative of Mediation: Parent Coordination,” http://www.divorcemag.com/articles/high-conflict_divorce/ what_is_parent_coordination.html
- “Guidelines for Parenting Coordination,” AFCC Task Force on Parenting Coordination, May 2005, pages 8-9.
- Tuetken v. Tuetken, 320 S.W.3d 262, 273 (Tenn. 2010).
- “Guidelines for Parenting Coordination,” AFCC Task Force on Parenting Coordination, May 2005, page 7.
- Id. at page 11.
- Id. at pages 11-12.
- See, e.g., O’Rourke v. O’Rourke, 2010 WL 4629035 (Tenn.Ct.App.); Odom v. Odom, 2010 WL 4264795 (Tenn.Ct.App.).
- 2010 WL 4629035 (Tenn.Ct.App.).
- Id. at *13, footnote 15.
- 320 S.W.3d 262, 273 (Tenn. 2010).
- Id. at 272.
- Id. at 272-273.
- “Parenting Coordination is a Bad Idea,” http://www.thelizlibrary.org/parenting-coordination/parenting-coordinati…
- 2011 WL 310544 (Tenn.Ct.App.).
- Id. at *3.
- “Parenting Coordination is a Bad Idea; http://www.thelizlibrary.org/parenting-coordination/parenting-coordinati…
Marlene Eskind Moses is the principal and manager of Moses Townsend & Russ PLLC, a family and divorce law firm in Nashville. She is the immediate past president of the American Academy of Matrimonial Lawyers, and has held prior presidencies with the Tennessee Board of Law Examiners, the Lawyer’s Association for Women, and the Tennessee Supreme Court Historical Society. The Tennessee Commission on Continuing Legal & Specialization has designated Moses as a Family Law Specialist; she is Board Certified as a Family Law Trial Specialist.
Co-author Beth A. Townsend is a partner at Moses Townsend & Russ PLLC, where she has practiced since 2001. She earned her law degree from Vanderbilt University, and her undergraduate degree from Duke University.
This article originally appeared in the Tennessee Bar Journal.
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