Fall 2005 #5. When co-parenting falters: Parenting coordinators, parents-in-conflict, and the delegation of judicial authority.

Author:by Dana E. Prescott
 
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Maine Bar Journal

2005.

Fall 2005 #5.

When co-parenting falters: Parenting coordinators, parents-in-conflict, and the delegation of judicial authority

Maine Bar JournalFall 2005WHEN CO-PARENTING FALTERS: PARENTING COORDINATORS, PARENTS-IN-CONFLICT, AND THE DELEGATION OF JUDICIAL AUTHORITYby Dana E. PrescottAccording to one organization's task force, the essential purpose of parenting coordination "is 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 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." (Guidelines for Parenting Coordination, AFCC Task Force on Parenting Coordination [AFCC Task Force], 2005, p. 2).

From this perspective, parenting coordination (PC) is viewed as a "quasi-legal, mental health, alternative dispute resolution (ADR) process that combines assessment, education, case management, conflict management and sometimes decision-making functions." (p. 2).

Each of these skill-sets are profoundly important to helping families engaged in chronic conflict. Given appropriate training and experience with family systems, lawyers and mental health professionals are deemed qualified to function as a PC. Many of these tasks already "blur" the line between the judicial and mental health systems as the role is a "hybrid" that functions on the "interfaces of the contrasting cultures of law and psychology" (Sullivan, 2004, p. 577). Typically, the "domains of authority involve day-to-day parenting issues such as decisions about children's education, activities, health care, and integrating and modifying specific provisions of a parenting plan" (p. 576).

Nonetheless, it may be wise to cleave the appointment of a PC from even the broadest definition of court-connected ADR like mediation, "with its much-touted potential benefits of flexibility, party control, confidentiality, relatively low cost, and minor risk" (Stipanowich, 2004, p. 849). To the contrary, the appointment of a PC usually represents the culmination of many failed efforts at collaborative forms of dispute resolution. Simply stated, imposition of a PC means the delegation of the court's constitutional and statutory authority to another professional, with the resulting diminution of parental autonomy. Thus, parenting coordination is an outcome-based program outside the formal family court process in which the PC is "accountable to the court; write and file their decisions as court orders, reports, or arbitration awards, and adhere to court rules and procedures, and their work (decisions and conduct) is subject to judicial and professional review" (Coates et al, 2004, p. 247).

The judicial appointment of a PC is a relatively recent phenomenon that flows from four basic premises. First, increasing rates of divorce and other forms of family dislocation result in significant rates of private civil litigation, with chronic conflict parents repeatedly returning to court (Sullivan, 2004; Coates et al, 2004). Second, chronic conflict between parents, however defined, increases the risk of failure for children at most levels of their academic, economic, emotional, physical, and psychological well-being (Garber, 2004; Neff & Cooper, 2004). Third, the judicial system is overwhelmed and cannot deliver the kinds of immediate services necessary to protect children from parents engaged in chronic behaviors inimical to their children's best interests (AFCC Task Force, 2005). Fourth, parenting coordination is a quasi-judicial role that may minimize conflict and enhance cooperation by parents while "substantially" reducing "relitigation rates" (Coates et al, 2004, p. 247). These premises are connected by a common theme: contemporary trends of family dislocation are yielding a higher rate of parental conflict over longer periods of child development.

Family Dislocation And Consequences

The current wave of divorce, non-marriage or paternity, and serial parental relationships has yielded a troublesome reality unforeseen thirty years ago (Fields, 2001; Bumpass & Lu, 2000). More than half of the children who experience divorce "do so by age six, and 75 percent of those young children are younger than three years of age" (Pruett, Ebling, & Insabella, 2004, p. 39).

The consequence of family dislocation at such an early age is that parents are now required to co-parent through court-ordered custody arrangements for a decade or more, which considerably increases the potential intensity and duration of parental conflict in homes, courts, schools, and therapist offices (Stewart, 2001). When conflict between parents to whom a child feels loyalty and love becomes chronic, the effects "on the children are worse than the effects of the divorce itself" (Neff & Cooper, 2004, p. 99; Kelly, 2000; Burns & Dunlap, 2002). From a psychological standpoint, a child may suffer anxiety, depression, and other indicia of trauma as a result of chronic conflict throughout various developmental phases (Thompson, 2001; Nicolotti, El-Sheikh & Whitson, 2003).

It is important, however, to add a tangential comment. Parents in poverty who engage in chronic conflict frequently find themselves in the child protective arena defending themselves against allegations. This occurs for a variety of reasons, including a greater likelihood of contact with law enforcement and disclosure by mandated reporters. Parents with economic resources utilize mental health professionals and lawyers as surrogates for their conflict in the private civil court arena. It is plausible to suggest that chronic conflict between parents is a form of abuse or neglect that implicates jeopardy standards. As an ethical and legal matter, relative standards of wealth should not obscure the harm caused by similar forms of misconduct toward children.

In response to the emotional and psychological harm of chronic conflict, the mental health and judicial systems have attempted a variety of mitigating strategies, including parenting education programs, individual and family psychotherapy, conjoint therapies and, mediation/alternative dispute resolution (Garber, 2004; McClure, 2002). The appointment of a PC, however, typically follows the failure of these less intrusive intervention methods to blunt the harm that occurs within one or more of the domains of family conflict.

Family Systems and the Domains of Conflict

Although beyond the scope of this article, any professional engaged as a PC should have an understanding of family systems theory as a means of identifying and assessing the dimensions of chronic conflict. This theory developed as a means of charting and organizing the behavior of parents and children as a function of each person in his or her environment and all sub-systems of a family as an adaptive, emerging, and shifting entity (Friedman, 1997; Andreae, 1996). As it relates to family systems, Johnston (1994) has developed a useful operational definition for the dimensions of parents-in-conflict as a means of developing intervention strategies:

* Conflict has a "domain dimension, which refers to disagreements over divorce issues such as financial support, property division, custody, and access to the children, or to values and methods of child rearing."

* Conflict has a "tactics dimension, which refers to the manner in which divorcing couples informally try to resolve disagreements either by avoiding each other and the issues, or by verbal reasoning, verbal aggression, physical coercion, and physical aggression; or it can refer to ways in which divorce disputes are formally resolved by the use of attorney negotiation, mediation, litigation, or arbitration by a judge."

* Conflict "has an attitudinal dimension, referring to the degree of negative emotional feeling or hostility directed by divorcing parties toward each other, which may be covertly or overtly expressed" (pp. 165-166).

The "quality" of the conflict as low, medium, or high is generally irrelevant. It is the consequences to children from chronic exposure to parental conflict that implicates "larger family systems issues that would necessarily involve intervention targeting the family as a whole and subsystems in the family" (Nicollotti, El-Sheikh, & Whitson, 2003, p. 325).

Friedman (2004), however, suggests a careful screening of responsibility when assessing the cause of conflict within family systems theory. "Blame" is often assessed equally when, in truth, the "power inequality that often prevails in custody arrangements can obscure the fact that one parent is often fighting for more equitable access while the other parent is...

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