Monday, September 22, 2014

Can a Judge Order you to Use a Parent Coordinator?

Earlier this month, The Supreme Judicial Court issued its decision on Bower v. Bournay-Bower, which addressed the Probate and Family Court's powers as they relate to the appointment of a Parent Coordinator.

A Parent Coordinator is a trained mental health or legal professional who helps parents with the implementation or creation of a parenting plan, who helps resolve disputes as they arise, and who can assist parents in understanding what is in the children's best interests.  Many people include a provision in their Agreements stating that they will use a Parent Coordinator prior to filing court actions. This is done in an effort to resolve matters quickly and more affordably, because a Parent Coordinator will often be available on relatively short notice to assist with everyday or urgent conflicts, and the parties can share the cost of the Parent Coordinator equally or in proportion to their incomes.  In some circumstances, the parties specifically agree to give the Parent Coordinator the power to make binding decisions that they must follow unless and until they obtain a different decision from the Court.

Prior to the Bower decision, it was unclear whether or not a Probate and Family Court Judge could order the parties to use a Parent Coordinator (if they did not agree to use one), and to what extent the Parent Coordinator could be involved. The Bower case involved a divorced couple who was ordered by their Judge to use a Parent Coordinator, and to have that Parent Coordinator make binding decisions that they had to follow unless and until they obtained a different decision by the Judge.

Through Bower, the SJC made it clear that a Probate and Family Court Judge possesses the authority to appoint Parent Coordinators in appropriate circumstances (a) in order to  conserve limited judicial resources and aid in the court's functioning and capacity to decide cases; or (b) if it is necessary to ensure the best interests of the children in a divorce or custody-related proceeding.  However, unless both parties agree, a Judge cannot give the Parent Coordinator the power to make binding decisions that the parties must abide by.

The SJC explained that forcing a party to be bound by a Parent Coordinator's decision would essentially be taking away that party's right under Article 11 of the Massachusetts Declaration of Rights, which grants an individual the right to "seek recourse under the law for all injuries or wrongs to persons, property, or character."  In addition, preventing a party from filing an appropriate Complaint or Motion in the Probate and Family Court until the Parent Coordinator had first made a binding decision would also infringe on the party's right to "seek recourse under the law."

The SJC also addressed situations that may involve domestic violence, and how it would be inappropriate and potentially dangerous to force a party to wait until a Parent Coordinator makes a binding decision before filing appropriate documents in court. It would be forcing a party to choose between safety and access to the courts.

Another concern cited by the SJC was the financial implication of forcing a party to use a Parent Coordinator. There are currently no regulations regarding the training, licensing or monitoring of Parent Coordinators, or the fee structures. As such, Parent Coordinators are often very expensive, and there may be situations where it would be inequitable and even financially detrimental to force a party to use a Parent Coordinator in lieu of going to Court.

In its decision, the SJC referred the matter to the Probate and Family Court to "review and consider the promulgation of a rule governing the appointment of parent coordinators. A rule will help to ensure that procedural and substantive safeguards are in place in any appointment of a parent coordinator to address issues including the selection of a parent coordinator, the points in proceedings when parties may be referred to a parent coordinator, the nature and scope of the authority that may be granted to a parent coordinator, and issues related to the apportionment and payment of the parent coordinator's fees."   In other words, the SJC wants there to be strict guidelines on the use of Parent Coordinators. 

(c)2014 by Law Office of Leila J. Wons. The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established. In accordance with rules established by the Supreme Judicial Court of Massachusetts, this blog must be labeled "advertising."

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