Out on a Limb: Appointing a Parenting Coordinator with Decision‐Making Authority in the Absence of a Statute or Rule

• Author: Joi T. Montiel
• Published date: 01 October 2015
• Date: 01 October 2015
• DOI: http://doi.org/10.1111/fcre.12174

OUT ON A LIMB: APPOINTING A PARENTING COORDINATOR

WITH DECISION-MAKING AUTHORITY IN THE ABSENCE OF

A STATUTE OR RULE

Joi T. Montiel

This Article addresses the issue of whether a court may appoint a Parenting Coordinator (PC) with decision-making authority

in the absence of a statute or court rule. The Article identifies possible sources of authority for the appointment of a PC with

decision-making authority in a state with no authorizing statute or court rule. It also provides a paradigm for constructing an

appointment that allows for the benefits of Parenting Coordination but does not delegate decision-making authority to an extent

that it would constitute an impermissible delegation of judicial authority.

Key Points for the Family Court Community:

Where a court seeks to appoint a PC with decision-making authority in the absence of an authorizing statute or court rule,

the court may find some authority allowing the appointment in (1) its equitable authority over child custody and visitation,

(2) its authority to enforceits own orders, or (3)its authority to appointother extrajudicialassistants such asa special mas-

ter or mediator.

Where a court seeks to appoint a PC with decision-making authority in the absence of an authorizing statute or court

rule, the court must craft an appointment that delegates enough decision-making authority to the PC for parentingcoor-

dination to be effective yet, at the same time, not so much decision-making authority as to render the appointment an

impermissible delegation of a judicial function, specifically:

The PC’s role should be limited to assisting the parties in implementing custody and visitation terms already

decreed by the trial court.

A PC should be appointed only if the parties to the divorce consent to the appointment or if the trial court

makes a finding that the case is a high-conflict case.

The parties must have the opportunity for the trial court to meaningfully review any decision of the PC so that

the trial court retains ultimate decision-making authority.

Keywords: Delegation of Judicial Authority; Parenting Coordination; and Parenting Coordinator (PC).

INTRODUCTION

Parenting Coordinators (PCs) assist parents in resolving, without litigation, disputes that arise as

they parent their children after a divorce. PCs also educate and counsel parents in an effort to mini-

mize the degree and frequency of future conflict to the benefit of the divorced parents, their children,

and the court system. As the benefits of parenting coordination become more widely understood,

many states are adopting statutes or court rules permitting parenting coordination.

1

Courts in many

other states, however, have appointed PCs without any such authority.

2

But they are rightly reluctant

to do so.

3

When an appointment is made without an authorizing statute or court rule, significant legal

questions arise such as whether the trial court has the authority to make the appointment and whether

the appointment is an impermissible delegation of judicial authority.

It is a basic constitutional principle that a court’s judicial power cannot be delegated.

4

That said, a

trial court may properly delegate certain limited functions.

5

At issue here is a court’s decision-

making function and whether, and to what extent, it may be delegated to a PC to make decisions

when disputes arise between divorced parents regarding their children.

Several cases serve as warnings that an appointment of a PC with decision-making authority must be

careful limited; appointment orders have been reversed on appeal where the trial court delegated too

Correspondence: jmontiel@faulkner.edu

FAMILY COURT REVIEW, Vol. 53 No. 4, October 2015 578–588

V

C2015 Association of Family and Conciliation Courts