72 The Alabama Lawyer 300 (2011). Why and How Alabama Courts Should Use Parenting Coordination in Divorce Cases.

• Author: By Joi T. Montiel

Alabama Lawyer

2011.

72 The Alabama Lawyer 300 (2011).

Why and How Alabama Courts Should Use Parenting Coordination in Divorce Cases

Why and How Alabama Courts Should Use Parenting Coordination in Divorce CasesBy Joi T. MontielThe most dominant factor in a child's psychological and social adjustment after a divorce is not necessarily the divorce itself; instead, it likely is the frequency and intensity of the parental conflict prior, during and after the divorce.(fn1) The child's exposure to parental conflict may cause depression, substance abuse, educational failure and "perpetual emotional turmoil."(fn2) Thus, in the best interest of the children of divorced couples, courts and practitioners should turn to mechanisms for resolving conflicts in ways that minimize the degree and frequency of parental conflict.(fn3) A relatively new and unfamiliar mechanism that accomplishes those goals is Parenting Coordination.

Parenting Coordination does not fit into a category of familiar extra-judicial roles, such as arbitration, mediation or reference. Thus, it has been challenged as an improper delegation of judicial authority, particularly in the absence of a statute or court rule specific to Parenting Coordination.(fn4) Alabama does not have a statute or court rule specific to Parenting Coordination, yet some Alabama courts are using it. No Alabama appellate court has addressed the question of whether and how this mechanism may be used in Alabama. This article proposes that, because an Alabama court has inherent authority to ensure the best interest of the children, an Alabama court has the authority to appoint a Parenting Coordinator even without a statute or court rule. The appointment is justifiable where the parents will otherwise be engaged in frequent conflict, and the appointment is in the best interest of the children involved because of the unique benefits that a qualified Parenting Coordinator can provide. This is true, however, only when appointment is crafted in such a way that the coordinator can provide the full benefits without usurping judicial authority. This article offers a paradigm for constructing such an appointment.

What Parenting Coordination Is and Is Not

A Parenting Coordinator assists high-conflict parents in resolving disputes that arise in the parents' efforts to jointly parent their children after a divorce. Although Parenting Coordination is an "alternative" means of dispute resolution, it is not mediation or arbitration. Nor is a Parenting Coordinator a special master or a guardian ad litem. Parenting Coordination cannot be understood as anything other than a "legal-psychological hybrid."(fn5)

Parenting Coordination is different from other dispute resolution mechanisms in that, in addition to resolving the instant conflict, the coordinator simultaneously educates(fn6) the high-conflict parents to minimize the degree and frequency of future conflict.(fn7) Parenting Coordination incorporates elements of "parent education and coaching, mediation, arbitration, judicial reference and child custody evaluation."(fn8) The teaching component of Parenting Coordination provides benefits that other alternative dispute resolution processes and extra-judicial roles do not. The theory of Parenting Coordination is summed up by the adage: "Give a man a fish and he will eat for a day. But, teach him to fish, he will eat for a lifetime."(fn9)

Why Alabama Courts Should Use Parenting Coordination

Ideally, a parenting plan incorporated into a divorce judgment will specify in detail the terms governing the post-divorce relationship so as to avoid opportunities for frequent conflict. However, often a parenting plan is not sufficiently specific, thus allowing for frequent opportunities for conflict. And even the most detailed parenting plan cannot contemplate every situation that will arise. Children's ages, interests and activities change; parents remarry and relocate. A parenting plan that appeared to contemplate and address every opportunity for conflict when the children were three and five years old will not necessarily contemplate and resolve every conflict that will arise when those same children are 13 and 15. If the divorced parents do not have the ability to resolve the conflicts that arise during that period, they likely will be back in court. The "teaching" component of Parenting Coordination that distinguishes it from other dispute resolution processes reduces the frequency and degree of these conflicts to the benefit of the court system, the children of divorce and the high-conflict parents.

Parenting Coordination benefits the court system. High-conflict parents use a disproportionate amount of the court's time and resources, converting the judicial system into a type of "social service agency."(fn10) One study has shown that family courts and associated professionals spend approximately 90 percent of their time on about 10 percent of parents.(fn11) Use of a Parenting Coordinator can mitigate this impact on the court system. In the short term, a coordinator will assist the parents in mutually resolving a given conflict or, if necessary, make a decision(fn12) that will resolve the instant conflict without court involvement. There are also long-term benefits of Parenting Coordination. In assisting the parents in resolving a given conflict, the coordinator will equip the parents with the skills to resolve future conflict on their own. Thus, when future conflicts arise, the parents may not need to resort to the courts-or even a Parenting Coordinator. One study showed a reduction in approximately 75 percent of child-related court filings after Parenting Coordination was implemented.(fn13)

Additionally, Parenting Coordination benefits the children of divorced parents. The use of a coordinator can allow for a more harmonious-or at least a less hostile-environment for the children. Parental conflict is detrimental to the children of divorce.(fn14) If, instead of using a Parenting Coordinator to resolve conflict, the parents turn to the adversarial environment of the court system every time they have a conflict, then they are unlikely to develop the skills and abilities to resolve the conflict on their own. In the meantime, that litigious environment in the respective households works to the detriment of the children; it is in the best interest of the children for their divorced parents to amicably and quickly resolve conflicts as they arise.

Parenting Coordination also benefits the high-conflict parents. As a practical matter, when small conflicts arise between parents post-divorce, the parents may need a speedy resolution. The court often cannot hear the case soon enough to meaningfully resolve the conflict.(fn15) In contrast, a Parenting Coordinator is much more accessible than a judge, and a coordinator can help the parents solve the problem expeditiously when the parents are unable to do so. The parents also benefit from the process in that the coordinator should equip them with the ability to resolve future conflicts on their own. Thus, in the long run, the process will be less expensive for the parents than the adversarial system. Although the parents will pay the Parenting Coordinator, if they instead seek to resolve their dispute in the adversarial environment of the court...