During a contested divorce or paternity action involving minor children, and often long after the case is formally resolved, some parents face ongoing disputes over “day to day” matters such as whether Fitch Law Partners LLP should participate in two extracurricular activities or three. The failure, inability, or outright refusal of one or both parents to communicate and reach an agreement with respect to these matters can lead to repeated court appearances and thousands of dollars in legal fees. In order to provide parties a forum for efficiently resolving such disputes, as well as assistance with learning to better communicate and co-parent, many parties will agree or be ordered to engage a professional parent coordinator (“PC”).
The Boston Law Collaborative defines a parent coordinator as “an impartial individual, usually someone with experience both as a mediator and in child custody matters, who is designated by the parties or appointed by the court to assist the parties in reaching agreement about child-related issues arising during or after divorce.”
Parents are always free to voluntarily agree to use a parent coordinator, and may exercise their discretion in defining the nature and scope of the parent coordinator’s authority, including authorizing the PC to serve as a binding arbitrator in the event the parties are unable to reach a mediated agreement. However, it has become increasingly common over the last twenty years for judges to order parties to use a parent coordinator, even over the objection of one or both parents. Although parent coordinators often provide much needed assistance to such families, the legal footing of this practice was questionable as there is presently no statutory authority permitting same.
In the case of Bower v. Bournay-Bower, a probate court judge appointed a parent coordinator over the objection of the mother. In substance, the order required the parent coordinator to hear all of the parties’ current and future disputes regarding custody and visitation in the first instance, before the parties could file any action regarding these disputes in court. The order also granted the parent coordinator the authority to make binding decisions on matters of custody and visitation and provided that these decisions must be complied with by the parties as if they were court orders unless one of the parties were to go to the court before the decision was to take effect and obtain a contrary order. Bower v. Bournay-Bower, 469 Mass. 690, 692-93 (2014).
On appeal, the Supreme Judicial Court vacated the parent coordinator’s appointment, finding that the probate court judge gave the parent coordinator too much power, especially since the mother in the case objected to the appointment altogether. “[W]e conclude that the judge in this case exceeds the bounds of inherent judicial authority in appointing, without all parties’ approval, a parent coordinator with binding decision-making authority,” Justice Francis X. Spina wrote for the court. “We further conclude that the breadth of authority vested in the parent coordinator constitutes an unlawful delegation of judicial authority.”
However, the SJC recognized “the valuable role that parent coordinators may play in assisting families” and acknowledged that “probate court judges possess the inherent authority to refer parties to a parent coordinator in appropriate circumstances in order to conserve limited judicial resources and aid in the probate court’s functioning and capacity to decide cases.” The SJC further asked the Probate Court “to review and consider the promulgation of a rule governing the appointment of parent coordinators.”
Lawyers, litigants and parent coordinators all agree on the need for a clear set of rules to govern the growing field, and the Probate & Family Court Department is presently studying how other states regulate parent coordinators, as well as the orders Massachusetts judges have used to appoint them in the absence of official guidance.