Over the past decade plus, I have written about the use, if not misuse/abuse of parent coordinators (PCs) many times on this blog. In fact, one of my most popular posts that continues to be read more than two and a half years after I wrote it is one entitled The Futility of Parent Coordination When a Parent Coordinator Wont Be Decisive. In fact, one of the seminal cases regarding the misuse of PCs is the case of Parish v. Parish, that I successfully argued in the Appellate Division, where the Appellate Division held that the trial court could not divert enforcement and all issues to the PC. In 2016, I wrote Another Reminder that Parent Coordinators Are Not Replacements for Judges.
Yet time and again, we see Orders or appeal that overstep the authority of a PC, giving them final say on issues, related to custody and parenting time, and sometimes even non-related financial issues. Now this is different than Orders that I often see, and quite frankly prefer if a PC has to be involved, which provide that the PC’s recommendation are to be followed (if not have the force of an Order), unless the objecting party files a timely objection with the Court. The reason that I prefer that provision is that often, a PC is used by a difficult/abusive party to inflict more financial and other terror on the other side – by either bringing every issue, big or small, to the PC to run up the other side’s fees (or maybe they are just impossible) and/or using the PC to make recommendations knowing that they simply won’t follow and/or object to a recommendation that doesn’t favor them. But Orders that contain presumptive validity and a requirement that they be followed are not absolute – they can be brought before the court if a party disagrees. In theory, the court is not supposed to be a rubber stamp of the PC (though that often happens), but rather, a de novo review of the issue, because the PC’s recommendation, is just that, a recommendation.
A new reported decision, D.K. v. B.K., released on January 7, 2021, highlights the frequent problem with the appointment of PCs and gives another primer on the history and issues. My partner, Eliana Baer, was the successful attorney at the Appellate Division in this case regarding the PC issue. Without getting into the nitty gritty of the facts, needless to say, this was a high conflict matter where the Appellate Division noted, ” The record is replete with examples of the parties’ animosity for one another and their inability to work together for the good of their children.” The trial court entered an Order granting defendant B.K.’s notice of cross-motion appointing a parent coordinator (PC) with authority to make final decisions on issues unrelated to parenting which was reversed by the Appellate Division.
While PCs have existed for many years, they were first formally approved by a Supreme Court for a pilot program in 2007. In Notice to the Bar at that time, the Supreme Court noted that a PC was to be:
“a qualified neutral person appointed by the court, or agreed to by the parties, to facilitate the resolution of day[-]to[-]day parenting issues that frequently arise within the context of family life when parents are separated.” Ibid.
The goal of appointing PCs, as stated in the notice, is:
[T]o aid parties in monitoring the existing parenting plan, reducing misunderstandings, clarifying priorities, exploring possibilities for compromise and developing methods of communication that promote collaboration in parenting. The [PC]’s role is to facilitate decision making between the parties or make such recommendations, as may be appropriate, when the parties are unable to do so. One primary goal of the [PC] is to empower parents to develop and utilize effective parenting skills so that they can resume the parenting and decision[-]making role without the need for outside intervention.
While the Pilot Program ended in 2012, courts were still permitted to appoint parent coordinators and model forms of Orders of appointment were provided. Thereafter, matters regarding PCs have been addressed by the Appellate Division.
Citing to Parish, the Court noted that since the end of the pilot programs:
… our courts have still held to the principles derived during the period of the pilot program. One such principle is “court review of . . . alleged violations of prior orders is not obviated by the parties’ agreement to utilize a [PC].” Subjects not appropriate for deferral to PC include “[e]nforcement of the parenting time provisions of the FJOD,” as “enforcement of orders rests with the courts and falls outside the sphere of the [PC]’s authority to aid in the implementation of a parenting time plan.
The court further quoted Parish noted:
We recognize matrimonial matters are susceptible to multiple motion filings, each met by a cross-motion, centering on similar general themes of enforcement of custody or support orders. Further, we are mindful of the great expense of time, money, and emotion associated with family court motion practice and the constant demands for intervention placed upon our Family Part judges. However, even repetitive motions for enforcement, when premised upon a demonstration of a party’s failure to comply with court orders, cannot be automatically deemed a burden on the judicial process and deferred to a [PC].
[Ibid. (basing its conclusion of error on the trial court’s sole determination of “a possibility” of “frivolous litigation.”).]
The Court went on to note:
Clearly, our courts are not in favor of a Family Part judge delegating tasks to a PC that are more appropriately suited for disposition in a courtroom. Ibid.; (citations omitted) (“The use of a PC is designed to aid parents by providing a different forum to discuss parenting problems. The use of a PC[, however,] may not [be] substitute[d] for a judge’s determination in contested parenting issues . . . .”) The concern evinced by Parish regards “restraints on litigation” that would prevent parties from having their disputes heard by a judge. (Citations omitted).
Accordingly, the Appellate Division held the trial judge was well within her discretion to appoint a PC here but erred in ceding authority
to the PC to make binding decisions on issues unrelated to parenting time. Given the above, qualifying this to “issues unrelated to parenting time” seems to be unintended.
Again, the takeaway here seems clear. Courts cannot grant PCs final decision making authority as that would be an abdication of their duties.