Does The Family And Probate Court Have The Authority To Appoint A Parent Coordinator Without Consent Of The Parties

September 21, 2014

There was an interesting case of first impression recently decided by the Supreme Judicial Court, on September 15, 2014, in WILLIAM J. BOWER vs. MICHELLE A. BOURNAY-BOWER concerning the authority of the Family and Probate Court to appoint a Parent Coordinator in a Divorce case, over the objection of at least one of the parties.  Normally a parent coordinator is appointed through some of the following scenarios:

pre- or post-divorce; or through a complaint for custody, visitation, or support, under Mass General Laws Chapter 209C; or by consent of the parties and/or by court order.

The role of the Parent Coordinator is to help parents make decisions on issues including visitation, holidays, medical care, extracurricular activities, education or discipline. They can also help parents create or modify a parenting plan, understand the developmental needs of their children and teach problem-solving strategies, depending on their qualifications and training.  Parent Coordinators serve an important and indispensable role in the Family Court system, by alleviating some of the time spent litigating matters in court, as well as facilitating an open forum for the parties to attempt to resolve matters without court intervention.  Parent Coordinators may be entrusted with binding decision-making authority in regards to disputed matters between the parties, which are brought to the attention of the Coordinator.

The Supreme Judicial Court in Bower v. Bower, above, found that, when the Court appointed a Parent Coordinator with binding authority to resolve conflicts in implementing the custody and visitation provisions of a divorce judgment, it exceeded the bounds of it’s authority in doing so.  Probate Court Judges do possess the inherent authority to refer parties to a Parent Coordinator in appropriate circumstances in order to conserve limited judicial resources and aid the Probate Court’s functioning and capacity to decide cases, or when such referral is necessary to ensure the best interests of the child in divorce or custody proceedings.  However, in this case the Supreme Judicial Court held that this appointment was not proper, because it granted the Parent Coordinator with binding decision-making authority without the consent of a party. 

The Supreme Judicial Court also held that the Probate Court exceeded it’s authority because such referral to the Parent Coordinator had been made in lieu of a hearing and ruling on the parties’ contempt complaints, which were pending at the time the Probate Court made it’s decision.  The Supreme Judicial Court held that if the referral by the Probate Court to the Parent Coordinator had not been made during the time, and was done while the parties were waiting for a scheduled hearing on the contempt, or had it been done as a way to expedite the negotiation of a settlement agreement or visitation plan while the divorce proceeding or complaint for modification were pending, that may have been ok.

The Supreme Judicial Court held that the Probate Court exceeded its authority in two areas:  1.  the nature and scope of the authority granted to the Parent Coordinator (as an unlawful delegation of Judicial decision-making authority, over a party’s objection).  2.  the point in the proceedings in which it was issued.

On appeal, the Mother’s argument was that the scope of the order [The order provided that the Parent Coordinator shall serve to hear all disputes between the parties regarding the custody and visitation] was so broad that it constituted an unlawful delegation of Judicial Authority because nothing in that order prevented the Parent Coordinator from making structural changes to the custody arrangement without regard to statutory standards which govern modifications of final divorce judgments, and it took away the Court’s authority to decide whether modifications to the custody arrangement were warranted, and essentially gave that authority to the Parent Coordinator.  The Supreme Judicial Court agreed.

Making sure to carefully explain that this decision should not limit the use of Parent Coordinators, the Supreme Judicial Court, stated “We further acknowledge that parent coordination services are being used with increasing frequency in Massachusetts and that such services may provide an important benefit to the families and the court system.  Therefore, nothing in this decision should be construed to limit the ability of parties to agree to use the services of a parent coordinator or for a judge to incorporate that agreement into a judgment of divorce or to otherwise enforce the agreement using contract principles.”

Parent Coordinators can be, and have been, and a great area of resource that this office has utilized in the past, in regards to a myriad of issues presented by divorce and/or custody cases. Call the Law Office of George N. Papachristos, for an initial consultation on your matters.