(973) 403-9200
By Charles F. Vuotto, Jr.
Are some parenting coordinators overstepping their bounds? Is this ‘overstepping’ being facilitated by poorly drafted agreements? In April 2007, the Supreme Court approved the Parenting Coordinator Pilot Program for Bergen, Middlesex, Morris/Sussex and Union counties and adopted guidelines for the program.[i]As described in the overview section of the program standards,
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[a] Parenting Coordinator is a qualified neutral person appointed by the court, or agreed to by the parties, to facilitate the resolution of day to day parenting issues that frequently arise within the context of family life when parents are separated. The court may appoint a Parenting Coordinator at any time during a case involving minor children after a parenting plan has been established when the parties cannot resolve these issues on their own. The Parenting Coordinator’s goal is to aid parties in monitoring the existing parenting plan, reducing misunderstandings, clarifying priorities, exploring possibilities for compromise and developing methods of communication that promote collaboration in parenting. The Parenting Coordinator’s role is to facilitate decision making between the parties or make such recommendations, as may be appropriate, when the parties are unable to do so. One primary goal of the Parenting Coordinator is to empower parents to develop and utilize effective parenting skills so that they can resume the parenting and decision making role without the need for outside intervention. The Parenting Coordinator should provide guidance and direction to the parties with the primary focus on the best interests of the child by reducing conflict and fostering sound decisions that aid positive child development.[ii]
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The fundamental right of a parent to the care, custody and control of their children is not absolute.[iii] “Indeed, the state has an obligation, under the parenspatriae doctrine, to intervene where it is necessary to prevent harm to a child.”[iv] In that vein, “parties to a matrimonial dispute may agree to comply with defined obligations regarding their use of a parent coordinator (“PC”), which do not violate the public policy of this State.”[v]This means there are limitations on what parents may agree to in terms of resolving custody and timesharing disputes. A parenting coordinator “may not substitute for a judge’s determination in contested parenting issues pending before the Family Part.”[vi] As such, the parenting coordinator guidelines (notwithstanding the termination of the pilot program) and the case law seemingly preclude a parenting coordinator from making recommendations regarding major modifications to custody and parenting time because, in this writer’s opinion, it may be contrary to the public policy prohibiting a court from abdicatingitsdecision-making authority. Therefore, to the extent that parties attempt to agree in a marital settlement agreement (“MSA”) or consent order to confer such authority on a PC, such provisions are problematic.
The pilot program guidelines state that, “[t]he Guidelines establish the Supreme Court’s operational details for a uniform approach to appointment of PCs and imposed purposeful boundaries on the PC role and those providing PC services.”[vii]The guidelines specifically preclude a parenting coordinator from making “any modification to any order, judgment or decree, unless all parties agree and enter into a consent order” and limit the parenting coordinator to recommending “minor temporary departures from a parenting plan when a situation arises that may warrant such an adjustment.”[viii]The guidelines further state that, “[i]n any particular case the Parenting Coordinator shall serve only in that role and shall not at any time serve in a dual role either as an attorney, therapist, guardian ad litem, mediator, or custody parenting time evaluator.”[ix]Section II (C) (2) and (3) of the guidelines gave examples of the PC’s authority as follows:
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(2) By way of illustration and not limitation, the Order of Appointment may authorize the Parenting Coordinator to make recommendations to the parties and/or attorneys, to implement an agreement between the parties, or to make a recommendation during time-sensitive circumstances such as:
(3) The Parenting Coordinator may not make any modification to any order, judgment or decree, unless all parties agree and enter into a consent order. The Parenting Coordinator may recommend minor temporary departures from a parenting plan when a situation arises that may warrant such an adjustment. The parties must agree to the change or file a motion to have the recommendation reviewed by the court.[x]
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The Supreme Court terminated the pilot program on Nov. 26, 2012.[xi] It directed:
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While the Parenting Coordinator Pilot Program will be ending, Family Judges may continue to appoint Parenting Coordinators in specific cases in any vicinage (except in cases having a domestic violence temporary or final restraining order if (sic) effect). Parenting Coordinators so appointed will need to be qualified to serve either by consent of the parties or by the court in the same manner as other experts. While there are no specifically required forms of order of appointment, the two model orders appended to this notice are provided for guidance. One model order would be for use in consent situations; the other when the Parenting Coordinator is appointed on motion by the court or a party.[xii]
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Both model orders endeavored to carry over the limitations of the PC’s authority by stating that “[t]he Parenting Coordinator shall not have authority to conduct parenting time or custody evaluations or to make recommendations concerning said issues.”[xiii] Both orders continue the prior restriction that “[t]he Parenting Coordinator shall not have the authority to change existing Orders of the Court unless the parties consent and enter into a Consent Order.”[xiv]
New Jersey courts have consistently held that the court cannot abdicate its decision-making power regarding custody and timesharing issues to a third party. Specifically, “[t]he use of a PC may not substitute for a judge’s determination in contested parenting issues pending before the Family Part.”[xv] Likewise, in P.T. v. M.S., the Appellate Division held that the parties’ agreement to waive a plenary hearing and cede the court’s authority to an appointed expert psychologist was invalid.[xvi] “Parties cannot by agreement relieve the court of its obligation to safeguard the best interests of the child.”[xvii] As such, “[t]he court must not abdicate its decision-making role to an expert” or any third party.[xviii] In Entress, the court reversed a trial court’s transfer of custody because the trial court relied exclusively on a psychologist’s letter without conducting an evidential hearing. The Appellate Division concluded: “Clearly, the ‘frustration’ of a psychologist is not an exigent circumstance, nor is an unsworn uncross-examined letter from the psychologist a basis for changing custody.”[xix]
The principle that a parenting coordinator is precluded from making recommendations for major changes to custody and parenting time orders has been reinforced by professionals who have written on the topic. For example, in an article by John Finnerty he states that: “Disputes about time-sharing plans or custodial designations require courts to make those determinations, usually after custodial evaluations have been completed. Parenting coordination is not intended to deal with such disputes.”[xx]
Aside from the express restrictions in the initial guidelines and subsequent notice terminating the program, there are real-world practical reasons why PCs should not be permitted to make recommendations about anything but minor changes in custody and timesharing. If a PC makes recommendations, those recommendations are not confidential or privileged. By communicating recommendations the PC may inadvertently relay (directly or indirectly) settlement positions of one or both parties on major issues of custody and timesharing. Those settlement positions and the recommendation of the PC will likely be released to the court by the favored party. Thus, permitting the PC to include recommendations on major changes in custody and timesharing will actually impede the PC process, as parties will be reluctant to advise the PC of their willingness to compromise those major issues.[xxi]Further, where a mental health professional is selected as a PC, that professional is barred by the PC guidelines from performing a custody evaluation. As such, his or her opinions on these major issues may very well be ‘net opinions.’
Query, Does wearing the hat of a PC cure the problem that a psychologist has rendered an opinion about the ultimate issue of custody and timesharing that he or she could not ethically do if appointed to do a child custody evaluation (CCE)? In other words, a psychologist must follow certain guidelines to perform a CCE. In the role as PC, a psychologist would not follow such guidelines because a PC is not in the shoes of an evaluator. If a psychologist renders an opinion about a major change to the custody and parenting time that is transmitted to the court without following the psychologist’s ethical guidelines, is it a problem under the psychologist’s own professional guidelines even though it is done in the role as PC?
Notwithstanding all of these problems, the judge will likely receive these recommendations, possibly tainting the court’s view of one or both of the parties onthe major child custody issues in the case. Further, if a PC is permitted to make recommendations about major changes to custody and parenting time, it allows a litigant to circumvent the well-established standards that a court must apply in determining whether a party has made a prima facie case for a modification of custody and parenting time. In other words, a PC might make a recommendation before a court has determined that a substantial change in circumstances has occurred that affects the general welfare of the child. The PC process is not intended to replace the legal standards for modification of custody and parenting time. Rather, the PC stands in the role to reduce conflict, increase communication and encourage compromise between the parties. If litigants are concerned a PC will modify their existing parenting time order, they will be reluctant to participate in the process and the efficacy of the PC will be compromised.The fact that the pilot program was terminated does not eliminate the underlying legitimacy of the policy reasons for the limitations in the guidelines barring PCs from making recommendations on the major issues of custody and timesharing. Thus, the guidelines are persuasive authority of the appropriate role of a parenting coordinator.
Pursuant to the above case law and the parenting coordinator guidelines, this author believes that, regardless of any agreement to the contrary, a PCshould be precluded from rendering a recommendation regarding major changes to custody and timesharing agreements or orders.
[i]Notice to the Bar: Parenting Coordinator Pilot Program – Program Guidelines and Related Material (Apr. 2, 2007), available at http://www.judiciary.state.nj.us/notices/2007/n070403a.pdf.
[ii]Id.(emphasis added).
[iii]Fawzy v. Fawzy, 199 N.J. 456, 474 (2009).
[iv]Id. at 474-75.
[v]Milne v. Goldberg, 428 N.J. Super. 184, 204-205 (App. Div. 2012)(emphasis added).
[vi]Id. at 205.
[vii]Milne v. Goldenberg, 428 N.J. Super.184, 205-206 (App. Div. 2012).
[viii]Id., § II.C(3) (emphasis added).
[ix]Id., § II.C(4).
[x]Id., § II.C(2)-(3) (emphasis added).
[xi]SeeNotice to the Bar: Parenting Coordinators – Conclusion of Pilot Program, 210 N.J.L.J. 854 (Dec. 3, 2012), available at http://www.judiciary.state.nj.us/notices/2012/ n121126a.pdf.
[xii]Id. (emphasis added).
[xiii]Id.(emphasis added).
[xiv]Id.
[xv]Milne, 428 N.J. Super.at 205; see alsoParish v. Parish, 412 N.J. Super. 39, 53 (App. Div. 2010) (holding that a court cannot defer its authority to enforce parenting time provisions to a parenting coordinator as it falls outside the sphere of the parenting coordinator’s authority).
[xvi]325 N.J. Super.193, 216 (App. Div. 1999).
[xvii]Id. at 215.
[xviii]Id. at 215-16.
[xix]Entress, 376 N.J. Super.at 133 (emphasis added).
[xx]John E. Finnerty, Parenting Coordination and Parenting Coordinators: CDR with Teeth, 27 N.J.F.L. 56 (Jan. 2007).
[xxi]The same problem impacts minor custodial issues, but the potential for harm and prejudice to the disfavored parent on minor issues is far less and likely outweighed by other facts such as cost and judicial economy.