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Monday, September 15, 2014

MA SJC Rules on Parent Coordinator Orders: Asks Probate Court to make a Rule

In the case of Bower v. Bournay-Bower, the Massachusetts Supreme Judicial Court has ruled that Judges in the Probate and Family Court cannot grant a Parent Coordinator binding authority over the objection of one of the parties.  However, the SJC went much further then necessary in order to open the door for what might be the "appropriate circumstances" to order a Parent Coordinator.


In Bower, the SJC summarized the trial judge's order as requiring a parent coordinator to:
"hear the parties' current and future disputes regarding custody and visitation in the first instance, before the parties could file any action regarding these disputes in court. The order also granted the parent coordinator the authority to make binding decisions on matters of custody and visitation and provided that these decisions must be complied with by the parties as if they were court orders unless one of the parties were to go to the court before the decision was to take effect and obtain a contrary order." - Bower
This order was made after multiple cross complaints for contempt were filed regarding the adherence to the parenting plan and legal custody requirements of the parties' divorce judgment.  The SJC recognized the usefulness of parent coordinators, but found that the order in this case "exceeded the bounds of the judge's inherent authority and was so broad in scope that it constitutes an unlawful delegation of judicial authority."

In their discussion, the SJC points out that
"Despite the increasing use of parent coordinators in Massachusetts, the specific functions of a parent coordinator, including the parent coordinator's duties, necessary qualifications, or scope of authority, have not been set forth by statute or court rule. "- Bower
Due to the court's broad inherent equitable powers the SJC did conclude that judges have the authority to appoint parent coordinators in "appropriate circumstances" and indicated some bounds that might be "appropriate":
"Therefore, probate court judges possess the inherent authority to refer parties to a parent coordinator in appropriate circumstances in order to conserve limited judicial resources and aid in the probate court's functioning and capacity to decide cases, or if in the judge's discretion such referral is necessary to ensure the best interests of the children in a divorce- or custody-related proceeding." - Bower
However, this authority must be limited and was exceeded in this case: "A judge's inherent authority does not extend to compelling a party to submit to the binding decision-making authority of a parent
coordinator without that party's consent."

The SJC was also concerned that the order in this case put off a decision on the existing pending contempt complaints and limited the filing of future claims.  Both of these exacerbated the due process concerns.

There is very clear language from the SJC that "a judge in the Probate and Family Court possesses the inherent authority to refer parties to a parent coordinator."  And also that they are not limiting the right of parties to agree to the use of these services.  If there is agreement, then the issue is easy, but even without agreement, the SJC is indicating that parent coordinators may be useful so long as the judge is careful not to give up too much of their own authority.

Therefore, the SJC asks the Probate and Family Court to promulgate a rule governing the appointment of parent coordinators to help ensure appointments address these and other concerns that the court has over training, favoritism in appointments, etc.  While a lengthy decision, Bower finally brings us some clarity on the SJC's position regarding Parent Coordinators.  Now, the Probate and Family Court can give parents even more clarity by creating the Rule the SJC has asked them for.


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