In Leon v. Cormier the MA Appeals Court upheld a contempt judgment against a mother who violated a parenting coordinator's order related to the mother's e-mail communications with the father. Specifically, the parenting coordinator ("PC") ordered that "as a rule, emails between [the parties] should . . . occur during . . . designated Tuesday email time. The ONLY exceptions are in the case of significant emergency or a necessary change in logistics that must be established for something that is to occur prior to the next Tuesday email time."
According to the trial court, the PC's e-mail order, which limited the timing and subject matter of e-mail communications between the co-parents, limited the mother's "ongoing urge to struggle" with the father through the use of "hostile and dictatorial tone[d]" e-mail messages, which the trial court found to be "counter-productive to effective co-parenting."
In upholding the trial court's contempt judgment against the mother after the mother violated the PC's email order on seventy separate occasions, the MA Appeals Court found that the PC's email order was indeed an effective and permissible use of the PC's services.
In Leon, the mother's violations of the PC's e-mail order even led the trial court to warn the mother that if she continued to violate the PC's e-mail order, parenting time might be suspended until the mother addressed her behavior with a family therapist. In this case, the trial court confronted the issue related to co-parenting communication in the context of a contempt proceeding - not a request for a change in custody - and the trial court scrutinized mother's dysfunctional co-parenting as a factor leading to a finding of a knowing and willing violation of the PC's e-mail order; but similar behavior on the part of a dysfunctional co-parent could lead a court in a custody proceeding to a finding that there has been a material change in circumstances that warrants an actual change in custody that is in a child's best interest.
In a custody case, as opposed to a contempt proceeding like Leon, one parent's bad behavior toward another parent in the context of the co-parenting relationship could constitute a material change of circumstances that provides the grounds for a Complaint for Modification seeking a change in custody. Once the court finds in such a case that a material change in circumstances has occurred, e.g., one parent incessantly sent hostile and dictatorial tone[d] e-mails to the other parent intended to undermine the other parent's parental role and alienate the children against the other parent, the court would then turn to a best interest analysis and make an appropriate custody determination.
In reading Leon it appears the courts are recognizing that in some circumstances you cannot be a good parent if you are completely dysfunctional in your co-parenting relationship. Some may argue, however, that just because co-parents are unable to communicate with each other in a civil fashion, so long as the children are shielded from those behaviors, and they are not being negatively impacted by the conflict between their parents that may arise from such communication, then arguably it would not be deemed contrary to the children's best interest if their parents continue to send each other hostile dictatorial tone[d] e-mails (as long as they can pull off an Academy winning performance at every transition, at every game, or at every school event to shield the children from the animosity, resentment or negative feelings that likely result from such e-mails).
In other words, if co-parents want to unload a barrage of attacks on each other via hostile and dictatorial tone[d] e-mails, why should a PC or the court care so long as the children are not subjected to the conflict. The answer seems to be that parents are too often unable to shield their children from the fallout of dysfunctional co-parenting. Hostile and dictatorial tone[d] e-mail or text messages are indeed counter-productive to effective co-parenting - no matter how good an actor a parent might be. The good news is that there is help available. Parenting Coordinators, online co-parenting communication and scheduling programs, co-parenting education and coaching are excellent resources to help parents hone the necessary skills to effectively co-parent in their children's best interest.
Jeffrey A. Soilson is a partner at Fitch Law Partners LLP, where he represents clients in a broad range of divorce, family law and probate litigation matters. He is a Fellow of the American Academy of Matrimonial Lawyers (AAML) and International Academy of Family Lawyers (IAFL). He is a graduate of Columbia University and the Benjamin N. Cardozo School of Law.