I was in my office last week when I heard shrieks of joy coming from down the hall. (We really should have a bell or something we ring for a big win – this yelling is so unprofessional.) My colleagues Sue Stenger, Francine Gardikas, Laura Studen, Robin Lynch Nardone and Andrea Dunbar had just gotten the SJC decision on the case on parent coordinators. Here is Robin’s take on what that case means for families and children in Massachusetts.
On September 15, 2014 the Supreme Judicial Court (SJC) decided a case of first impression on the issue of whether a court can appoint a Parenting Coordinator. A Parenting Coordinator (PC) is a mental health professional or legal professional who assists high-conflict parents to implement their parenting plan by facilitating the resolution of their disputes. In Bower v. Bournay-Bower, the Probate and Family Court appointed a PC even though the mother did not want a PC and objected to the judge’s suggestion that one was warranted in this case.
Over the mother’s objection, the court appointed a PC with authority to make binding decisions on matters of custody and visitation. The Order provided that the PC’s decisions must be complied with by the parties the same as court orders, unless one party went to court before the order was to be implemented and obtained a contrary order. The SJC held that the Probate and Family Court judge exceeded her judicial authority in appointing a PC with binding decision-making authority over the objection of a party. Further, the SJC held that the authority vested in the PC was an unlawful delegation of judicial authority – meaning that a judge cannot give a PC the power to make decisions that should be made by a judge. The PC could change custody without a party having to show a material change in circumstances or that the change is in the best interests of the children. By statute, the judge is obligated to issue the final decision on any modification to the family’s custody arrangement.
Massachusetts presently has no rule or statute setting forth the duties, required qualifications, or scope of authority of a PC. In this case the SJC encouraged the Probate and Family Court to enact a rule regarding the appointment of PCs to ensure procedural and substantive safeguards are in place in any appointment, including:
- Selection of PC (list of approved providers should be maintained and appointments distributed fairly to avoid favoritism).
- Define the points in proceedings when parties may be referred to a PC.
- Define the nature and scope of the authority that may be granted to a PC so as to avoid an unlawful delegation of judicial authority.
- Resolve issues related to the apportionment and payment of PC fees (e.g., judge may not require parties to use a PC if the order would require one or both parents to pay for the PC’s services without his or her consent).
- Training, licensing, or monitoring of PCs.
- Whether and how parents may file complaints or seek removal of PCs.
- Confidentiality policies.
- Case screening procedures.
Notwithstanding the decision that the PC appointed in Bower v. Bournay-Bower was improper, the SJC concluded that the court does have the inherent authority to appoint a PC in appropriate circumstances in order to conserve limited judicial resources. Additionally, the SJC wrote, “nothing in this decision should be construed to limit the ability of parties to agree to use the services of a parent coordinator or for a judge to incorporate that agreement into a judgment of divorce or to otherwise enforce the agreement using contract principles.” Clearly, parties who have already agreed within their Temporary Order or Separation Agreement to utilize a PC will be bound by their agreement. One lingering question is whether an agreement granting a PC binding decision-making authority will be enforced or whether that improper delegation of judicial authority can be successfully challenged by a party who previously agreed to give a PC binding authority.
The SJC acknowledged the increasing frequency of PC services in Massachusetts and that such services may provide an important benefit to families involved in the court system. But the Probate Court, or better yet the legislature, needs to put rules and protections in place.
Kudos to my Burns & Levinson colleagues, Laura Studen, Francine Gardikas, and Susan Stenger for their hard work on the Bournay-Bower matter and for securing this victory for their client.