Skip to main content

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.


Comments

Popular posts from this blog

What is the purpose of the Divorce Nisi waiting period?

In Massachusetts the statutory waiting period after a Judgment of Divorce and before the divorce becomes final (or absolute) is called the Nisi period. After a divorce case settles or goes to trial, a Judgment of Divorce Nisi will issue and it will become Absolute after a further ninety (90) days. This waiting period serves the purpose of allowing parties to change their mind before the divorce becomes final. If the Judgment of Divorce Nisi has issued but not become final yet, and you and your spouse decide you don't want to get divorced, then you can file a Motion to Dismiss and the Judgment will be undone. Although many of my clients who are getting divorced think the idea of getting back together with their ex sounds crazy, I have had cases where this happened. In addition to offering a grace period to change your mind, the Nisi period has three other legal effects: 1. The most obvious effect of the waiting period is that you cannot remarry during the Nisi period, be

Does a Criminal Record affect Child Custody?

If one of the parents in a custody case has a criminal record, the types of crimes on their record could have an effect on their chances of obtaining custody. In custody cases the issue is always going to come down to whether or not the best interests of the child might be affected. In the most extreme case, in which one parent has been convicted of first degree murder of the other parent, the law specifically prohibits visitation with the children until they are of a suitable age to assent. Similarly, but to a less serious degree, in making custody and visitation determinations the court will consider crimes that would cause one to question the fitness of a parent. These types of crimes would obviously include any violent crime convictions which could call into question whether the children would be in danger around a parent who has shown themselves to resort to violence when faced with conflict. In addition, drug and alcohol abuse offenses would call into question a parent&#

The Questions that Lawyers and Mediators aren't asking but should: Let's talk about Pronouns

I recently had the opportunity to train with two of the most prominent mediators in Massachusetts: John Fiske and Diane Neumann . Each time they run a training, John and Diane share what they think is the most important question for a client to answer to have an effective mediation. John says that he thought the most important question is "What do I want?" But then he will tell you, with a knowing smile, that Diane disagreed with him and she would say that the most important question for a client to answer is "Who am I?" I agree with Diane. The best lawyers and mediators ask their clients not just about what they want, but also deep questions about the clients' identity, goals, and values in order to help the clients resolve conflict in the most effective way possible. Despite knowing this, we often fail to ask clients the simplest questions when we first meet them or have them fill out an intake. We fail to give them an opportunity to answer the question “W