Parenting coordination in Alabama: the current status.

• Author: Kirkland, Karl

1. INTRODUCTION

   Parenting Coordination has emerged across American and Canadian jurisdictions as a frequently used, court-ordered alternative dispute resolution (ADR) neutral role. These neutral roles have goals, which include protecting children from high conflict and assisting litigious post-divorce families with the implementation of safe and workable parenting plans. (1) The role is controversial because it involves a competent court of jurisdiction granting some authority to a third party to assist families with the implementation of the family's court ordered or mutually selected parenting plan.

   Parenting Coordination involves a Parenting Coordinator (PC) who monitors compliance with the details of the court ordered parenting plan, which is thought to be effective because of the rapid access to the PC. As a representative of the court, the PC can potentially facilitate and/or resolve conflicts in a timely manner while protecting and sustaining healthy and meaningful parent-child relationships. The extension of authority granted by the court to the PC is justified only because the role effectively insulates the children from the potential toxicity of high levels of parental conflict.

   The PC is legally justified as a child protective role precisely because of its effectiveness. This effectiveness flows from three primary characteristics: (1) greater access and availability for families in crisis; (2) the unique knowledge base of the family law professional concerning the dynamics of divorcing families; and (3) the court-granted authority given to that professional to help families resolve common post-divorce disputes. (2) This paper asserts the conclusion that due process concerns about the role are offset by the benefits of the PC's child protective features.

   Parenting Coordination exists to give families easier and faster access to court monitored solutions in domestic court cases to potentially resolve post-divorce disputes without having to make costly, and often adversarial, return trips to court. The PC role has emerged internationally as a multidisciplinary, court-appointed role for both lawyers and mental health professionals. The difficulties of high conflict families in the post-divorce dispute world have led some leaders in the field to opine that our courts are actually ill suited, without being able to appoint PCs, to address and resolve most post-divorce disputes. (3) Certainly, it is well accepted that high conflict families pose a specific and measurable risk to child welfare, which the advent of PCs reduces. (4)

2. THE PROBLEM DEFINED: HIGH CONFLICT FAMILIES IN DIVORCE

   Unfortunately, divorce is a common event in our society. While divorce is admittedly stressful for all families, most participants are able to successfully complete the process without requiring the assigned judge to appoint family law professionals empowered to assist the court with the divorce process. The great majority of divorcees, with the assistance of able lawyers, settle their disputes without taking up the court's time with a trial. Results from different studies show that six to twenty percent of custody disputes are decided by a court. (5) However, there are families who become so embroiled in toxic conflict that the conflict itself becomes the problem. Any family law judge or family law professional will confirm the old dictum that toxic conflict, which is chronic, pervasive, and protracted, creates a dangerous emotional environment for children, perhaps even the most dangerous environment. Only a small percentage of divorcing parents end up with guardians ad litem (GAL) or court ordered custody evaluations. An even smaller number end up in protracted post-divorce disputes that require appointment of PCs. (6)

   Several researchers have devoted years of research to determining the impact of divorce upon children. In general, the effects of divorce can be greatly minimized by enhancing positive communication between the parties and increasing efforts toward cooperative co-parenting. (7) Two major factors have consistently emerged as those to avoid in the effort to minimize the disruptive effect of divorce: (8) (1) hostile conflict and (2) triangulation, which is defined as the use of hostile conflict by one parent to pit the children against the other parent. (9) The clinical manifestation of these factors is typically found in the actions of one parent directly or indirectly undermining the authority of the other parent, or otherwise attempting to alienate the affection of the child toward the other parent. Such behavior has been characterized as being, at best, poor parenting, and at worse, a form of emotional abuse.

   The disputes that drive estranged, divorced couples back to the courtroom often revolve around non-legal issues that are characterized as familial or social in nature. The PC role arose out of repeated needs in the post- divorce environment for divorce professionals, such as GALs and mental health professionals, to assist domestic courts in resolving disputes that come before the court. Unfortunately, access issues, the potentially adversarial climate, and the restrictions of evidentiary rules can often prevent the court from having immediate and thorough access to both the manifest stated reasons for asking for the court's help in a post-divorce conflict, as well as the underlying motives and "real reasons" that a family is returning to court. The very presence of the PC role is designed to remedy these barriers by providing faster access to a court representative without all the requirements and costs associated with formal filing to get back before the court. As a result, children and families are poorly served without the court appointed PC role. Because of the important role the PC serves, the American Bar Association (2000), (10) the American Psychological Association, (11) and the Association of Family and Conciliation Courts, (12) have all encouraged development of the PC role for domestic courts as a methodology of great promise in the ways to decrease the acrimony that can often accompany the post-divorce dispute process.

   Parenting Coordination is an ADR technique that is increasingly being used as a post-divorce intervention to help protect children of divorce from the negative effects of high conflict divorce. Parenting Coordination is a multidisciplinary hybrid ADR role that involves court appointment of a family law professional whose main task is to facilitate the joint implementation of a parenting plan. This court sanctioned multidisciplinary role has grown rapidly across American and Canadian jurisdictions. Parenting Coordination legislation has been passed into law in ten states and has been implemented by court rule in many more locations. (13)

   The PC role grew in the trenches of family courts where high conflict families tend to over-utilize court resources by excessive return trips to court. Research about the effects of high conflict divorce on children revealed that high levels of conflict and triangulation of children between parents emerged as the most toxic causes of childhood problems. High conflict couples represent a small minority of divorcing couples. However, this small minority tends to take up a majority of the time of our family courts in post-divorce disputes. These post-divorce disputes most often involve family communication problems, e.g., conflict over extracurricular activities, behavioral problems, and house rules, rather than legal issues.

   The adversarial legal environment is ill designed to assist families in resolving such disputes and, inadvertently, often creates barriers to effective communication. The American Bar Association has recognized this unintended feature of our legal system where children and families are concerned and has proposed a paradigm shift that involves innovative program development, such as a PC, as a solution. (14)

   Over the past six years, the use of a Pattern PC Order (15) has been increasingly used in a number of Alabama counties. The use of this order began in Montgomery and spread to an additional eleven counties. The Pattern PC Order has been used in the following Alabama counties: Montgomery, Autauga, Elmore, Chilton, Shelby, Escambia, Covington, Conecuh, Madison, Lee, Macon, and Dallas Counties.

   Many Alabama circuit court judges have embraced the role as a legitimate extension of their place in the process of intervening with families to protect children from high conflict divorce. At least one jurisdiction (Jefferson County) has objected to the use of the Pattern Order because, without enabling legislation, the court did not have the authority to grant a person outside of the court the appointed ability to perform judicial functions in the post-divorce environment.

   Most objections to the use of the PC role nationally have been based on procedural due process. The Association of Family and Conciliation Courts (AFCC) is an interdisciplinary, international professional organization concerned with all aspects of family law, family courts, and the resolution of family disputes. In 2004, then AFCC President-Elect Judge Hugh Starnes, of Ft. Myers, Florida, proposed four challenges for courts considering PCs. (16) These challenges include: (1) identifying the proper cases for PC referral; (2) appropriate education and orientation to the PC process by the court, with a clear agenda; (3) using the court order to define the role of the PC, maximize the power of the PC, and educate the parents about how to utilize PC services; and (4) provide for a manner of monitoring by the court, which would include consequences for non-compliance or a lack of cooperation with the PC. These are also presented as measures to protect the due process rights of all the parties.

3. OBJECTIONS TO THE PARENTING COORDINATOR ROLE

   Most objections to Parenting Coordination have included three major issues: (1) the assertion that appointment of a...