Attorneys are in general persona non grata in New Jersey’s pilot program for appointment of parenting coordinators in divorce cases, a state appeals court ruled on Wednesday.
Supreme Court guidelines for coordinator selection favor a mental health professional for the job, though an attorney can be appointed if no one objects, the court said in Milne v. Goldenberg, A-4062-10, A-4319-10 and A-4594-10.
The Appellate Division held that the guidelines are applicable statewide, even in vicinages like Essex County that are not part of the pilot program, which began in five counties in 2007.
The court reversed the appointment of an attorney over the ex-wife’s objection. Katherine Milne and Robert Goldenberg were divorced in 2007 after 19 years of marriage. Judge Claude Coleman appointed a parenting coordinator, Amie Wolf-Mehlman, to resolve parenting-time disputes. But Milne discharged Wolf-Mehlman after disagreeing with her recommendations.
Coleman decided the case required more than a parenting coordinator, so he appointed Linda Schofel, an attorney with a social services background, as the children’s guardian ad litem.
He later appointed another parenting coordinator, attorney Ellen Marshall, after Schofel recommended appointment of an attorney for the job.
After meeting with the parties, Schofel drafted a consent order memorializing an agreement she believed resolved the issues, but Milne rejected the recommendations.
Judge Thomas McCormack, who later got the case, held a two-day hearing in March 2011 on Schofel’s recommendations.
At the outset, Milne suggested the parties should be allowed to testify and she requested more time to obtain expert testimony. McCormack denied the request, explaining that R. 5:8B permitted only the guardian ad litem to testify, subject to cross-examination, without testimony from parties or other experts.
Schofel delineated her recommendations for custody, parenting time and related issues in the case before undergoing cross-examination.
McCormack later adopted some of Schofel’s recommendations.
On appeal before Judges Marie Lihotz, Alexander Waugh Jr. and Jerome St. John, Milne argued that Coleman erred by appointing Marshall without the parties’ consent.
The panel agreed, reversing the appointment and holding that any judge appointing a coordinator must comply with the Supreme Court’s guidelines.
The pilot program was approved by the court in March 2007 for implementation in Bergen, Middlesex, Morris, Sussex and Union counties.
“Although we are aware of no reported authority binding a non-pilot county to the Guidelines, we have no hesitation in ordering such a result,” Lihotz wrote.
Though Schofel recommended appointment of an attorney as parenting coordinator, the guidelines’ expressed limitation on using attorneys absent consent of the parties “is meaningful and cannot be disregarded,” Lihotz said.
Milne also claimed that her due process rights were infringed by McCormack’s decision not to permit her to present witnesses or her own testimony at the hearing on the guardian ad litem’s recommendations. Schofel’s testimony should not be considered “in a vacuum,” Milne asserted.
Lihotz agreed in general and said McCormack used too restrictive an interpretation of R. 5:8B, which allows a court to appoint an expert to represent the best interests of a child.
A guardian ad litem’s role does not obviate presentation of evidence refuting his or her factual assertions, and a parent or other witness may present evidence in response to the guardian’s testimony, Lihotz wrote.
“[D]isputes implicating the welfare of a child and involving conflicting contentions and opinions of lay and expert affiants must be submitted to a plenary hearing,” the court said, citing Fusco v. Fusco, 186 N.J. Super. 321 (1982).
Furthermore, a trial judge is never bound to accept a GAL’s recommendations, and must never “‘cede responsibility and authority’ or ‘abdicate the decision-making role to an expert,’” the panel said, citing P.T. v. M.S., 325 N.J. Super. 193 (1999).
But Lihotz found the error harmless. Despite the plaintiff’s protest of the procedure used, she offered no evidence she would have presented that would alter the result.
Milne was represented by Kingston solo Dale Console, who says the ruling would help future litigants, if not her client.
Console adds that the goal in specifying mental health professionals for the job of parenting coordinator was to help matrimonial litigants with their communication skills.
A telephone number could not be located for Robert Goldenberg, who was pro se.