Parent coordinators have just been abolished in Pennsylvania. By an order dated April 23, the Pennsylvania Supreme Court has adopted Rule 1915.11-1 of the Pennsylvania Rules of Civil Procedure. Rule 1915.11-1 will become effective May 23, and it states that courts shall not appoint any other individual (excepting masters and hearing officers) to make decisions or recommendations or to alter a custody order in child custody cases. All orders appointing parent coordinators will become vacated on May 23.
In retrospect of the Superior Court’s recent decision in A.H. v. C.M., 2012 Pa. Super 277 (2012), perhaps this rule could be seen as a natural progression of the diminishment of parent coordinator authority that began with the court’s decision in Yates v. Yates, 2008 Pa. Super 296 (2008).
Parent coordinators had become increasingly popular in child custody cases over the past five years for trial courts in nearly every county. Family law judges are faced with heavy caseloads, seemingly endless dockets and the bitter vitriol that continuously flows from high-conflict custody matters. As a result, many turned toward parent coordinators as a means to alleviate the burden on the court system and give parents quicker access to decisions on routine matters such as scheduling conflicts.
Parent coordinators can be incredibly helpful — not just to the courts, but also to attorneys involved in the representation of clients who feel the need to fight over every issue, from how many hours for a visit the other parent should get on the child’s first communion, to whether or not their child should cut her bangs.
Many attorneys would probably respond that their experience with parent coordinators has been somewhat of a mixed bag. One case in my own practice that comes to mind used to see an emergency petition for special relief filed almost once per month until a parent coordinator was involved by court order.
Since the parent coordinator’s involvement, the petitions stopped and the matter has been kept out of court for nearly a year. On the other hand, many attorneys have also likely seen the problematic side of parent coordinators. Some cases are simply too high-conflict for the parent coordinator to be effective. In conjunction with the extreme expense that comes with billing both sides for every email, telephone conference and meeting (in addition to paying attorneys to keep on top of each development), some parent coordinators have trouble with being properly able to define their roles.
The parent coordinator review process, put into place to give the trial court superseding authority over the parent coordinator’s decisions, can also be a problem in custody matters.
This last issue, the issue of review and superseding authority, was addressed at the end of 2012 by the state Superior Court in A.H. In A.H., the court was tasked with reviewing a trial court’s decision to deny the mother de novo review of one of her parent coordinator’s decisions. While this appears to be a simple issue with an obvious result, the Superior Court felt that this procedural issue was important enough to merit a published decision.
Doubly striking is the fact that A.H. is one of only two published opinions concerning parent coordinators despite their increasingly popular use.
Ultimately, the court found it was an error of law for the trial court to deny the mother’s request for de novo review, but in analyzing their decision, the Pennsylvania Superior Court reiterated its prior decision in Yates.
In Yates, the court previously articulated the boundaries of a parent coordinator’s role. The court defined parent coordination as "a child-focused alternative dispute resolution process in which a mental health or legal professional with mediation training and experience assists high-conflict parents to implement their parenting plan by facilitating the resolution of their disputes in a timely manner, educating parents about children’s needs, and with prior approval of the parties and/or the court, making decisions within the scope of the court order or appointment contract."
The Yates court further explained parent coordinators can be empowered to decide "ancillary" matters related to physical and legal custody, provided those decisions do not impact upon "core" issues. As a side note, in practice, this language is difficult to define for all parties involved.
While most involved parties agree "ancillary" does not give the parent coordinator the authority to switch primary custody, reasonable minds can differ as to whether it is ancillary for a parent coordinator to give a non-recurring extra overnight. It is not hard to imagine that counsel, opposing counsel, the parent and the parent coordinator can arrive at different conclusions.
By way of example, imagine parents being at odds over whether or not their parent coordinator should have any involvement in the parties’ summer vacation schedule. The party affected could feel the parent coordinator should have no say whatsoever and argue vacation time is a "core" issue. Opposing counsel could argue the vacation time issue is not set firmly in the schedule and is thus ancillary, at least to the timing aspects. Is it ancillary for a parent to be awarded extra time during his or her child’s first communion when it falls on the other parent’s day? Is it a core issue if both parents are devout Catholics?
These were the kinds of seemingly minor issues that could crop up rapidly when utilizing a parent coordinator. Returning to the court’s decision in A.H., it is probably not surprising then that the Superior Court felt the need to emphasize procedural oversights for all parent coordinator decisions. Turning to the facts of A.H., the case stemmed from an alleged incident that took place at the parties’ child’s school recital, which I can tell you as a family law attorney is an event that is ripe for all kinds of headache-inducing potential litigation.
As a result of the mother’s supposed behavior at this recital, the father contacted their parent coordinator to discuss a potential violation of the parties’ communication policy. As additional background, many parent coordinators first appear to focus on getting the parties to successfully communicate. So it is fairly typical for parent coordinators to implement a communication plan, or to include communication rules as part of the overall parenting plan.
In A.H., the parent coordinator met with the parties and found the mother had violated the communication aspects of their parenting plan.
The mother, not at all pleased with the parent coordinator’s decision, petitioned the trial court for hearing on the matter. The trial court informed the mother she would have four minutes to discuss the issue at an informal conference, rather than giving her a de novo hearing on the matter. The trial court also colorfully told the mother it did not want to see the case back again for "some talent show communication," and stated that the mother’s further petitions on the subject would be denied without review.
The trial court’s reasoning in denying the mother a de novo hearing is not particularly clear.
The trial court, during the mother’s four-minute day in court, heard from the mother’s attorney, opposing counsel and the parent coordinator. After this brief conference, the court issued an order denying the mother’s petition on the matter and told the mother if she filed any further petitions, the court would deny them without reviewing them.
In analyzing the earlier decision in Yates, the Superior Court noted it had previously stated parenting coordinator decisions must be subject to review. The Superior Court reiterated the earlier statement in Yates that the parent coordinator’s decisions must be subject to review and that trial courts must not "merely substitute the parent coordinator’s judgment for its own."
In A.H., the court found four minutes of conference was a violation of the protections previously afforded by Yates. The court was careful to reiterate, however, that the actual appointment of a parent coordinator was within the trial court’s right, but such an appointment must be subject to de novo review.
Furthermore, the court in A.H. pointed out that denial of a de novo hearing in circumstances such as this case constituted a violation of the mother’s due process rights. In the same vein, the Superior Court specifically cautioned the trial court that its statements about denying the mother’s future petitions indicated an intention to violate the mother’s due process rights in the future. The Superior Court then went even further by devoting the remainder of its opinion to quoting the Pennsylvania Code of Judicial Conduct and its requirements of impartiality, diligence and competence.
The end result of the A.H. decision was a reversal of the trial court’s order, an order for remand and de novo hearing and a directive that the trial court’s order specifically state a de novo hearing was required on the record and that it outline the parent coordinator’s decision in a manner consistent with Yates.
While the mother "won" when all was said and done, the time involved in the process and the need to take something as trivial, per the trial court, as "some talent show communication" all the way to the Superior Court raises important questions about the efficacy of implementing parent coordinators in the first place.
While not every issue ends up in the Superior Court — a grand total of two have in the past five years merited published opinions — attorneys and judges must surely have been thinking twice after A.H. about the point of having a third party decide issues that by law are subject to a de novo court hearing.
Why pay a third party to issue a decision when you will end up in court anyway, adding on the additional costs of litigation for the parent coordinator? Why have a third party decide an issue at all when the judge is required to take a fresh look and issue his or her own decision? If issues even as small as "some talent show communication" are subject to the mandate of review, why would any client ever be willing to accept and abide by a parent coordinator’s decision with which they disagree?
The matter of time spent on parent coordination and litigation was also (prior to rule 1915.11-1) a topic for serious consideration. In A.H., the incident regarding the school recital occurred in February 2012. The parties received a decision from the Superior Court in December 2012 and the trial court was given 30 further days to schedule a de novo hearing and no specific direction as to when an order was required. That time amounts to nearly one year of litigation for two attorneys and all of the attendant costs over a communication issue that occurred at a school play that probably lasted less than one hour.
While not every case is high-conflict, and not every client is likely to appeal every decision of his or her parent coordinator, attorneys, judges and clients alike must surely have asked themselves whether the continued use of parent coordinators passed a cost-benefit analysis in the wake of A.H. Now, with the passage of rule 1915.11-1, these questions have been rendered moot. •
Sean P. McCusker is an associate in the family law department at Weber Gallagher Simpson Stapleton Fires & Newby, where he concentrates his practice on the full range of domestic relations matters including support, divorce, custody and equitable distribution.