Parenting Coordination Law in the U.S. and Canada: A Review of the Sources and Scope of the PC's Authority

• DOI: http://doi.org/10.1111/fcre.12507
• Author: Hon. Dolores Bomrad,Alexander Jones,Milfred D. Dale
• Published date: 01 July 2020
• Date: 01 July 2020

PARENTING COORDINATION LAW IN THE U.S. AND CANADA: A

REVIEW OF THE SOURCES AND SCOPE OF THE PC’S AUTHORITY

Milfred D. Dale, Hon. Dolores Bomrad, and Alexander Jones

The development of parenting coordination has continued from its informal beginnings in the 1980s to the present where

more than twenty states and provinces have enacted statutes or rules regarding parenting coordinator appointments. Parenting

coordination evolved as a tool for courts attempting to manage the conflicts between parents that placed children of divorce

and parental separation at risk for behavioral, emotional, and psychological problems. Use of parenting coordinators (PCs) in

some form now occurs in almost every jurisdiction, even those with no formal statute or rule. This review examines the legal

foundations for court authority to order parenting coordination interventions as well as the legal efforts to define the scope of

the PC’s authority in individual cases. Included is the examination of the statutes, rules, and case law illustrating many of the

controversies and psycholegal flashpoints in the field. AFCC’s updated Guidelines for Parenting Coordination (2019) reflect

maturation and professionalization of the intervention via suggestions for training, professional competence, and ethical guid-

ance. The authors offer assistance and suggestions for those working to develop or improve legal parenting coordination

frameworks.

Key Points for the Family Court Community:

Parenting coordination law consists of statutes and rules that are jurisdiction-specific.

Parenting coordination models range from those similar to mediation to those that combine mediation with limited

arbitration-like authority over day-to-day issues.

No state or province allows PCs to change custody or court orders without aprocess of judicial review.

The scope of the PC’s authority is often tailored to meet the needs in individual cases.

Keywords: Parenting Coordination; Parenting Coordination Law; Parental Rights; Parenting Coordination Statutes; Par-

enting Coordination Rules; Parenting Coordinator Authority; Scope of Parenting Coordinator Authority; Court

as Conflict Manager.

I. INTRODUCTION

Parenting coordination has evolved from its informal beginnings in the 1980s to a frequently

used tool in family courts. For many parents, education, mediation, and therapy, either alone or in

combination, are not effective in curtailing post-separation parental conflict. Significant numbers of

parents remain in conflict two to three years after the divorce.

1

Parenting coordination developed to

help parents resolve on-going child-related disputes through a combination of both mediation and

decision-making techniques and is used as an alternative to the conflict escalation and high

expenses of continuing adversarial litigation.

2

Development of parenting coordination laws and rules has lagged behind use of parenting coor-

dinators (PCs). Parenting coordination laws and rules have developed piecemeal based on local

preferences, politics, and differences in the manner with which delegation of judicial authority to

nonjudges is handled.

3

Two early models of parenting coordination, the mediation-arbitration model

from Colorado and the Special Masters approach in California, relied upon stipulations or private

consent agreements between the parties.

4

In some states and in much of Canada, this remains true.

In some jurisdictions, PCs continue to be appointed without specific state statutes or local rules.

“The specific nature of the role of a parent coordinator varies significantly both within and among

Correspondence: E-mail: drbuddale@outlook.com

FAMILY COURT REVIEW, Vol. 58 No. 3, July 2020 673–709

© 2020 Association of Family and Conciliation Courts

jurisdictions that permit such appointments. In certain circumstances, the role of parent coordinator

may be analogous to that of a mediator, in others to that of a master, and still in others, the parent

coordinator’s role combines multiple functions.”

5

Parenting coordination occurs in all fifty states and s everal Canadian provinces. In 2001, Okla-

homa enacted the first parenting coordination statute. Twenty-one states and two Canadian prov-

inces have parenting coordination statutes or rules regarding appointment of PCs, but large

numbers of PCs function without a specific parenting coordination cour t rule or statutory authority.

Parenting coordination case law has developed in those jurisdictions with rules or statutes as well as

those without such formal legal authority.

Parenting coordination law reflects a legal balancing act. On the one hand, it involves expanding

the reach of the state’s use of best interests of the child principles and the state’sparens patriae

responsibilities as this relates to children. On the other hand, these principles and responsibilities

often directly challenge parental rights to privacy including the right to care and provide for one’s

children without state intervention. Appellate courts have dealt with a host of issues including, inter

alia, challenges to traditional notions of parental rights –particularly due process rights, questions

about the scope of the court’s authority to intervene, and how much authority the court may dele-

gate to a neutral third party such as a PC. Parenting coordination laws strive to define, standardize,

and regulate the intervention within each jurisdiction. Parenting coordination in the United States,

when it exists in a jurisdiction, is a part of state family law. In Canada, parenting coordination law

is a combination of federal and provincial law.

II. WHY PARENTING COORDINATION AND PARENTING COORDINATION LAW

ARE NEEDED

Parenting coordination has developed as a response to three sets of perceived needs. First, early

social science research showed that many children of divorce and parental separation needed help.

6

Significant numbers of these children and their parents were at risk for adjustment, behavioral, and

emotional problems. These risks were much higher when separating parents were in conflict and

failed to cooperate. Conflict between parents, not the divorce itself, came to be seen as the source

of risks to children.

7

The terms “high conflict divorce,”“high conflict families,”and, more recently,

“high conflict coparenting dynamics,”have been used to reference a significant subgroup of sepa-

rating parents who consumed disproportionate amounts of the time and resources of family courts

under the guise of fighting for their child. As many as twenty percent to twenty-five percent of par-

ents remain in high conflict three to four years after separation or divorce.

8

The development of par-

enting coordination and the demands of high conflict families are intricately linked both in time and

function.

Second, family courts need parenting coordination as an option. A number of social and legal

trends increased the numbers of parents using the adversarial legal system to settle disputes regard-

ing custody and access.

9

Increases in joint legal (decision-making) custody and joint physical cus-

tody orders grew from research on the benefits to the child of relationships with both parents. But

these developments did not come without costs. “Litigation between parents increasingly focused

on the extent of the paternal involvement and shared custody as well as disputes regarding parental

abilities.”

10

These sharp increases in the volume of cases coming to family court necessitated development

and use of more efficient dispute resolution alternatives to litigation. Increasing numbers of families

were ordered into educational and mediation interventions designed to benefit the children and fam-

ilies, control the conflict via enforcement of the parenting plan, and lessen the burdens on the court

and the legal system. In many instances, courts and judges became conflict managers.

11

The needs

of family courts for help have resulted in parenting coordination, or other interventions similar to

674 FAMILY COURT REVIEW

it,

12

being used in almost every jurisdiction, regardless of whether there are rules or statutes to

govern it.

In addition, “high conflict”cases often tie up disproportionate amounts of system resources.

These obsessive litigants take an enormous amount of time and energy from family courts and

judges. Parents with high conflict coparenting dynamics repeatedly find their way to court where

courts are asked to function as a last resort to make decisions because these parents cannot make

their own, to act in loco parentis monitoring day-to-day care of their children, and to resolve family

dilemmas that other professionals cannot resolve.

13

And finally, most professionals and parties perceive the need for guidelines and regulation of

parenting coordination. Two major U.S. professional organizations have promulgated aspirational

guidelines. AFCC has been a leader in developing guidelines for parenting coordination practice.

14

The new Guidelines for Parenting Coordination, approved by the AFCC Board of Directors in May

2019, reflect the organization’s third formal report since the initial effort in 2003. APA published

aspirational guidelines in 2012.

15

Both sets of guidelines are aspirational rather than standards of

practice per se and are similar in that they focus on training, professional competence, ethical guid-

ance, and role functions.

16

Three professional organizations in Canada have published Standards of

Practice: the British Columbia Parenting Coordinator’s Roster Society,

17

the Family Dispute Resolu-

tion Institute of Ontario (FDRIO),

18

and the Prince Edward Island legislature.

19

III. LEGAL TRENDS SUPPORTING PARENTING COORDINATION

Legal regulation of parenting coordination has steadily grown. The law of parenting coordina-

tion, as implemented by individual courts, family court systems, and state legislatures, has devel-

oped in fits and starts depending upon the jurisdiction. Use of PCs preceded development of

specific parenting coordination statutes or court rules. Appellate cases quickly appeared and

increased in volume, both in jurisdictions where there were state statutes as well as in jurisdictions

where parenting coordination was ordered absent any statutory foundation. Many of the cases

reflected dissatisfaction and problems with the intervention and the performance of PCs.

Most opposition or resistance to parenting coordination is related to concerns about the due pro-

cess rights of parents and whether the PC appointment represents an improper delegation of judicial

authority. Because of differing parenting coordination models, “[w]hether a Parenting Coordinator’s

appointment is an improper delegation of judicial authority depends on the authority for the

appointment in the given jurisdiction and the terms governing the specific appointment.”

20

The

nature of any due process challenge depends upon the nature of the PC appointment and the nature

of the court’s delegation of its authority over these rights and the best interests of the child.

Parenting coordination’s emergence as a tool for family courts is also directly linked to two broad

legal developments related to the above due process and jurisdiction issues. The first set of develop-

ments include the notion that there are limits to the rights parents have to the care and custody of

their children. In addition, not every element of parental rights is a fundamental liberty interest

deserving of the same kinds of due process protections. Finally, courts may delegate non-substantive

decisions to third parties such as PCs without being found to have abrogated their judicial authority

over issues of custody and the best interests of the child. At one time, this prohibition against delega-

tion of judicial authority was absolute.

21

Now it differs from jurisdiction to jurisdiction.

A parent’s rights to the care, custody, and control of their children is considered a fundamental

liberty interest.

22

A parent cannot be deprived of his or her right to the care, custody, and control of

his or her child without due process of law. But parental authority is not absolute.

23

Due process

balances (1) the private interests affected by the proceeding, (2) the risk of error created by the

jurisdiction’s chosen procedures as well as the value of additional or substitute procedures, and

(3) the countervailing governmental interest supporting use of the challenged procedure.

24

“[I]n

Dale et al./PARENTING COORDINATION LAW IN THE U.S. AND CANADA 675