A parenting coordinator is an individual who is appointed by the court in custody cases to assist in executing and enforcing ancillary issues of a custody order. Parenting coordination has become a hot issue in the area of Pennsylvania child custody. It is also a controversial issue. The controversy is multifaceted. One of the issues is whether a parenting coordinator making decisions is tantamount to an improper delegation of judicial decision-making authority. Another issue is whether a parenting coordinator must be an attorney or whether the parenting coordinator may also be a mental health professional.
The seminal case regarding parenting coordination is the case of Yates v. Yates, 963 A.2d 535 (Pa. Super. 2008). In Yates, the state Superior Court held that a trial court may appoint a parenting coordinator in cases with high-conflict parents who have trouble making parenting decisions on their own. The Superior Court limited the parenting coordinator’s authority to ancillary custody issues and not core issues such as legal and physical custody determinations. The Superior Court in Yates further held that a de novo review of a parenting coordinator’s decision must be utilized if the parties are dissatisfied with the parenting coordinator’s decision.
In the recent case of A.H. v. C.M., __ A.3d __, 2012 PA Super. 277 (December 18, 2012), the requirement of a de novo review of a parenting coordinator’s decision was addressed again.
On appeal, the Superior Court in the A.H. case held that the trial court erred in failing to hold a de novo hearing on C.M.’s (the mother’s) petition to review the parenting coordinator’s decision.
The pertinent facts of A.H. are as follows: A.H. and C.M. are the parents of a child born in June 2004. On June 9, 2008, a parenting coordinator order was entered. According to the opinion: "The parenting coordinator order provides that the decision of the parenting coordinator is subject to review by court hearing." The parenting coordinator order further provides: "The court will make an independent determination as to whether the decision represents an abuse of the parenting coordinator’s discretion or is contrary to fact or law."
According to the opinion, A.H. contacted the parenting coordinator after an incident occurred at the child’s school recital. The parenting coordinator found that "the mother had violated the parenting coordinator’s policy regarding communication between the parties." Thereafter, C.M. filed a petition for review seeking a de novo hearing before the trial court. "The trial court heard a brief description of the matter from the parties’ counsel, without a de novo hearing, stating that it was limiting the mother’s presentation of her issue for review to four minutes," the opinion said. The trial court then denied the mother’s petition without a hearing. The mother thereafter filed a timely notice of appeal and raised the following issue: "Did the lower court commit an error of law and abuse of discretion by ruling upon appellant C.M.’s motion for review of decision of parenting coordinator without a de novo hearing?" According to the opinion, the trial court failed to set forth any findings of fact or procedural background in its opinion. However, the Superior Court stated that it would set forth sufficient factual history and procedural background that are supported by the record in order to enable appellate review of the matter.
As reflected in the opinion, C.M. "presented to the trial court that she had the right to a [de novo] hearing. The trial court refused her request, stating that the mother’s counsel would have four minutes of the court’s time, and stating that she did not want to see this case back again for ‘some talent show communication.’ The trial court further instructed the mother that, if she filed any further petitions, the judge would deny them without reviewing them." In the trial court’s opinion, the trial court explained its action taken and stated that it allowed C.M.’s counsel to present her argument, heard statements from A.H.’s counsel and the parenting coordinator and thereafter denied C.M.’s motion without scheduling a separate hearing. In its opinion, the trial court further referenced the Yates decision and stated that it believed that "the transcript of the proceedings … including a thorough explanation by [the parenting coordinator], satisfies the requirement for a review, without the need to hold the separate hearing." According to the Superior Court opinion: "The trial court acknowledged our decision in Yates but opted to disregard it, deciding that a separate de novo hearing was unnecessary." The Superior Court further stated: "Our decision in Yates confirms the trial court’s authority to have its own procedure, subject to due process, in the absence of formal rules." However, the Superior Court held that the trial court may not deny the mother a hearing de novo as same results in a denial of the mother’s due process rights. The Superior Court found that the trial court’s actions denied the mother the protection afforded in the Yates decision. Therefore, the Superior Court reversed the trial court’s order relating to judicial review of the parenting coordinator’s decision and directed that the trial court enter an order specifying that a de novo review was required, among other things.
Interestingly, in a footnote in the Superior Court’s opinion, the Superior Court cautioned the trial court for its statement that it would deny any future petition for review of the parenting coordinator’s decisions without reviewing them. The Superior Court provided excerpts from the Pennsylvania Code of Judicial Conduct in cautioning the trial court.
This case is important for family law practitioners as it provides further guidance on the issue of parenting coordination. There exists a proposed rule of civil procedure permitting a judge to appoint parenting coordinators at any time after a custody order has been entered. The proposed rule mandates a de novo review of the parenting coordinator’s rulings if the party seeks review of the same. In the past, there was also proposed legislation that was on the other end of the spectrum and provided, in part, "a judge of a Court of Common Pleas shall have no authority to appoint a parenting coordinator in an action involving custody of a child. Any decision rendered by a parenting coordinator shall be void." The proposed legislation was never enacted and the proposed rule has not been promulgated. Therefore, the current law regarding parenting coordinators remains the holding in the Yates decision and the Superior Court’s affirmation and reiteration of the mandates contained in the Yates decision as reflected in the recent case of A.H. •
Michael E. Bertin is a partner at the law firm of Obermayer Rebmann Maxwell & Hippel. Bertin is co-author of the book Pennsylvania Child Custody Law, Practice, and Procedure. Bertin is the chair of the family law section of the Philadelphia Bar Association, co-chair of its custody committee and a past member of council and the executive committee of the family law section of the Pennsylvania Bar Association.