The Progressive Lawyer

The functional role of the Parent Coordinator (PC) is not accurately described in any legal code. Currently, most jurisdictions do not sufficiently address issues of due process and very seldom outline protocols for gathering evidence or conducting 'hearings.' The functional roles of the PC ' which may often be an amalgam of interdisciplinary roles ' are often left up for grabs.

Part One of this article defined the newly evolving role of the parenting coordinator and discussed various statutory authorities for the PC role; the role's purpose and scope; how PCs are appointed; what decision-making authority PCs have or do not have; the timing of PC appointments; and the court's jurisdiction to make such appointments. Part Two dealt with additional PC topics, including continuing jurisdiction and judicial review of PC decisions or recommendations. Part Three addresses PC proceedings; ex parte communications; confidentiality; referral for third-party services; access to non-parties, children and privileged information; submission and exception to PC recommendations or reports; and PC immunity.

PC Proceedings

Wide latitude is typically accorded the PC as to how sessions with family members are to proceed. For the most part, these sessions or hearings can best be described as 'informal.' Although the PC is not typically required to make a record of the proceedings, some jurisdictions permit the PC to videotape or record proceedings with parents at the PC's sole discretion.

While meetings with parents may be scheduled either separately or together, the better practice is to refrain from the use of one-on-one caucuses between the PC and an individual parent. Experience has shown that any added candor that might be achieved from one parent through caucusing is more often than not offset by compromising the trust of the other parent. This remains the case, even where both parents are offered the opportunity to individually caucus with the PC. The same trust-rippling phenomena obtains with mediation. The PC almost invariably meets with any children 7 years of age or older. If the PC is uncomfortable interviewing the children, the PC should be permitted to enlist the services of a pediatric mental health professional, in much the same manner as many guardian ad litem rules permit today.

Ex Parte Communications

Some jurisdictions permit the PC to communicate ex parte with attorneys, while others do not. It is essential for both parties' attorneys to be enrolled in the PC process for it to succeed. Most PC processes provide that parents may communicate ex parte with the PC. Many courts permit the PC, by stipulation or order, to communicate with the court immediately in emergency situations. More often than not, such emergency disclosures result in a substitution of PCs, and the re-designation of the former PC as a potential witness, subject to examination, as is the case with most guardian ad litem appointments. Other jurisdictions flatly prohibit such communication.

Some orders of appointment may permit ' while at the same time discourage ' ex parte communication with parents and attorneys. This is particularly true where PC decisions are made on the basis of those communications. In those cases, the PC is acting as a reviewable arbitrator, and must abide by a code of conduct similar to that of the Judiciary. Naturally, these orders also prohibit ex parte communication with the judge. Other orders of appointment may specify that the PC may not communicate with attorneys ex parte, except as pertains to routine scheduling matters. They may also permit the PC, by stipulation or order, to communicate immediately with the court in emergency circumstances.

Confidentiality

As a general rule, the PC process is not considered confidential. Similar to the guardian ad litem role, communications with the PC are not
privileged and the PC can be called as a witness to testify to the court and to offer opinions or recommendations regarding custody or parenting time issues or both.

Despite the fact that communications with the PC may not be confidential or privileged, the parent coordinator should typically not disclose any
information about the parties or the children, except to the extent reasonably necessary to fulfill the stated duties and responsibilities specified in the order of appointment. Court rules or vicinage practices may also require that the PC maintain records of each meeting with any parent and that those records are subject to subpoena ' but only by the presiding judge. In such cases, the judge would perform an in camera review of the PC's records in order to decide whether to release them to the parties. This is similar to the process followed in several jurisdictions in response to a request that the clinical notes of any mental health professional who is currently treating or had been treating one of the parents be reviewed for relevant content, in the best interests of any involved child.

In some jurisdictions, a client may have the privilege of refusing to disclose and of preventing a parent coordinator from disclosing any communications, observations, opinions, work product or case files maintained by the PC. Exceptions to the privilege typically obtain to the PC's written decisions and to any written memoranda in support of any such decision. In other jurisdictions, although the order of appointment may articulate that the process is to be non-confidential, testimony may be an entirely different story, with the PC not being permitted to testify without the express mutual agreement of the PC and the parties. In still other jurisdictions, the PC may be permitted to appear and must be available to testify at any court hearing upon reasonable notice.

By and large, there is typically no confidentiality concerning communications with the PC. Parenting coordinators may usually communicate with custody evaluators, assessors, screeners, or any other individuals investigating the issues, as directed by the court. Concerning testimony, parties who want the PC to testify at a hearing ' other than to report on findings ' may be required to deposit a reasonable fee, in advance, to cover the hourly rate of the PC. The order of appointment may also notify the parents that the PC may be required by law to report child abuse or elder abuse, as well as any threats of abuse.

Referral for Third-Party Services

Frequently, the PC will discover that the children or parents require ancillary services provided by third parties. Such adjunct services include, but are not limited to, psychotherapy, psychological or physical examinations, supervised visitation or parenting time, alcohol or drug monitoring and assessments, and the appointment of a guardian ad litem for the child. The PC has authority, in the context of some models, to determine and order appropriate medical, mental heath and counseling treatment for the parents and children alike. The PC usually specifies whether any mandatory counseling is or is not confidential in such instances.

Other models deem referrals to third-party services as falling under the PC's recommendation power. In those distinguishable contexts, PC referrals to third-party services are not immediately binding upon the parties. The recommendations are typically made to the court, whereupon the court may choose to set forth the recommendation ' or some variant of it ' in an order, with or without argument or input from counsel.

Access to Non-Parties, Children and Privileged Information

The PC model typically provides for access to any persons involved with family members, such as physicians, mental-health-care providers, school officials, guardians ad litem, custody evaluators, or other professionals involved with the family. The PC nearly invariably meets with children who are 7 years of age or more. It is usually helpful for the PC either to meet with the children, or to receive input from a therapist who knows the children well and meets with them on an ongoing basis. The PC can never be the child's therapist, however, because of the obvious role conflict and differing standards of confidentiality.

PC models often provide access to all orders and pleadings filed in the case, to school and medical records of the children, and to reports of psychological testing or evaluations that have been performed. In many jurisdictions, the standard stipulation includes detailed language to afford the PC with access to various professionals who might be involved with the family, currently or in the past, and to any other information the PC might find useful to work on the case. Additionally, provisions may be included to permit the PC to hire a consultant to assist in addressing particular issues. Parties are almost always directed to execute releases and consents to facilitate the PC's investigation. Toward that end, orders of appointment almost invariably contain provisions to the effect that the parties will agree to execute the necessary releases and consents.

Submission and Exception to PC Recommendations or Reports

In some cases, a decision made by the PC is filed as an order of the court, is immediately binding, and subject to review and modification by the court, with the objecting party required to file a motion to bring their objection to the court. A detailed protocol, with procedural requirements and timelines for filing objections should be part of the order of appointment. The standard of review may vary according to the likely effect of the decision on the parent-child relationship.

Term, Removal and Resignation

The usual term for PC appointment is about 2 years. During the period of appointment, the PC may be removed or resign by legal process. The intervention may thereupon end, or the court may arrange for a substitute PC. The reason for resignation is often the PC's conclusion that the process is no longer ' or has never been ' productive, or simply due to the nonpayment of fees. At least one state has a fund set up to subsidize PC involvement. However, the length of the intervention is strictly limited.

PC removal may be requested by either or both parents, by application on notice. The determination of whether or not good cause for the removal exists is typically reserved by the courts. Where both parties request and agree that the PC should be removed, however, the court may grant the application without exercising its discretion in the name of good practical sense. PCs may be reappointed after term expiration by the court, sua sponte, upon application of either party, or at the request of the PC.

Good Cause for Termination, Modification or Reappointment

In most cases, whether or not there is a fixed term of appointment, the court should be permitted to terminate or modify the PC appointment for good cause upon application by either party or by a guardian ad litem, at the request of the PC, upon the agreement of the parties and the parenting coordinator, or by the court, sua sponte. Good cause includes, but is not limited to:

• a determination that the parties no longer need the assistance of a PC;
• the PC is unable or unwilling to continue to serve;
• an impairment on the part of a party which significantly interferes with participating in the PC process; or
• lack of reasonable progress over a significant period of time despite the best efforts of the parties and/or the PC.

Some PC processes may involve a grievance procedure to disqualify a PC on any grounds applicable to a judge or arbitrator.

Immunity

In states where the PC is appointed pursuant to court order, the PC typically receives quasi-judicial immunity, notwithstanding those complaints that can nonetheless be filed with professional licensing boards by aggrieved individuals. In states where there is no statutory immunity, local rules might provide that the PC is appointed as an agent of the court and is not liable for decisions made or information provided while serving in the capacity of PC.

Part Four will conclude by providing a comprehensive PC order of appointment.

Curtis Romanowski, a member of this newsletter's Board of Editors, limits his practice to New Jersey Divorce, Matrimonial Law, Child Custody Law and Family Law. He is President, Collaborative Family Institute, LLC, an organization dedicated to positive transformation of divorce, child custody and parenting disputes in America. Romanowski is a Court-Appointed Chancery Division Mediator, Matrimonial Early Settlement Program (ESP) Panelist & Parent Coordinator / Parenting Coordinator. He is included on the Presiding Judge's list of Counsel for Children & Guardians Ad Litem.

The functional role of the Parent Coordinator (PC) is not accurately described in any legal code. Currently, most jurisdictions do not sufficiently address issues of due process and very seldom outline protocols for gathering evidence or conducting 'hearings.' The functional roles of the PC ' which may often be an amalgam of interdisciplinary roles ' are often left up for grabs.

Part One of this article defined the newly evolving role of the parenting coordinator and discussed various statutory authorities for the PC role; the role's purpose and scope; how PCs are appointed; what decision-making authority PCs have or do not have; the timing of PC appointments; and the court's jurisdiction to make such appointments. Part Two dealt with additional PC topics, including continuing jurisdiction and judicial review of PC decisions or recommendations. Part Three addresses PC proceedings; ex parte communications; confidentiality; referral for third-party services; access to non-parties, children and privileged information; submission and exception to PC recommendations or reports; and PC immunity.

PC Proceedings

Wide latitude is typically accorded the PC as to how sessions with family members are to proceed. For the most part, these sessions or hearings can best be described as 'informal.' Although the PC is not typically required to make a record of the proceedings, some jurisdictions permit the PC to videotape or record proceedings with parents at the PC's sole discretion.

While meetings with parents may be scheduled either separately or together, the better practice is to refrain from the use of one-on-one caucuses between the PC and an individual parent. Experience has shown that any added candor that might be achieved from one parent through caucusing is more often than not offset by compromising the trust of the other parent. This remains the case, even where both parents are offered the opportunity to individually caucus with the PC. The same trust-rippling phenomena obtains with mediation. The PC almost invariably meets with any children 7 years of age or older. If the PC is uncomfortable interviewing the children, the PC should be permitted to enlist the services of a pediatric mental health professional, in much the same manner as many guardian ad litem rules permit today.

Ex Parte Communications

Some jurisdictions permit the PC to communicate ex parte with attorneys, while others do not. It is essential for both parties' attorneys to be enrolled in the PC process for it to succeed. Most PC processes provide that parents may communicate ex parte with the PC. Many courts permit the PC, by stipulation or order, to communicate with the court immediately in emergency situations. More often than not, such emergency disclosures result in a substitution of PCs, and the re-designation of the former PC as a potential witness, subject to examination, as is the case with most guardian ad litem appointments. Other jurisdictions flatly prohibit such communication.

Some orders of appointment may permit ' while at the same time discourage ' ex parte communication with parents and attorneys. This is particularly true where PC decisions are made on the basis of those communications. In those cases, the PC is acting as a reviewable arbitrator, and must abide by a code of conduct similar to that of the Judiciary. Naturally, these orders also prohibit ex parte communication with the judge. Other orders of appointment may specify that the PC may not communicate with attorneys ex parte, except as pertains to routine scheduling matters. They may also permit the PC, by stipulation or order, to communicate immediately with the court in emergency circumstances.

Confidentiality

As a general rule, the PC process is not considered confidential. Similar to the guardian ad litem role, communications with the PC are not
privileged and the PC can be called as a witness to testify to the court and to offer opinions or recommendations regarding custody or parenting time issues or both.

Despite the fact that communications with the PC may not be confidential or privileged, the parent coordinator should typically not disclose any
information about the parties or the children, except to the extent reasonably necessary to fulfill the stated duties and responsibilities specified in the order of appointment. Court rules or vicinage practices may also require that the PC maintain records of each meeting with any parent and that those records are subject to subpoena ' but only by the presiding judge. In such cases, the judge would perform an in camera review of the PC's records in order to decide whether to release them to the parties. This is similar to the process followed in several jurisdictions in response to a request that the clinical notes of any mental health professional who is currently treating or had been treating one of the parents be reviewed for relevant content, in the best interests of any involved child.

In some jurisdictions, a client may have the privilege of refusing to disclose and of preventing a parent coordinator from disclosing any communications, observations, opinions, work product or case files maintained by the PC. Exceptions to the privilege typically obtain to the PC's written decisions and to any written memoranda in support of any such decision. In other jurisdictions, although the order of appointment may articulate that the process is to be non-confidential, testimony may be an entirely different story, with the PC not being permitted to testify without the express mutual agreement of the PC and the parties. In still other jurisdictions, the PC may be permitted to appear and must be available to testify at any court hearing upon reasonable notice.

By and large, there is typically no confidentiality concerning communications with the PC. Parenting coordinators may usually communicate with custody evaluators, assessors, screeners, or any other individuals investigating the issues, as directed by the court. Concerning testimony, parties who want the PC to testify at a hearing ' other than to report on findings ' may be required to deposit a reasonable fee, in advance, to cover the hourly rate of the PC. The order of appointment may also notify the parents that the PC may be required by law to report child abuse or elder abuse, as well as any threats of abuse.

Referral for Third-Party Services

Frequently, the PC will discover that the children or parents require ancillary services provided by third parties. Such adjunct services include, but are not limited to, psychotherapy, psychological or physical examinations, supervised visitation or parenting time, alcohol or drug monitoring and assessments, and the appointment of a guardian ad litem for the child. The PC has authority, in the context of some models, to determine and order appropriate medical, mental heath and counseling treatment for the parents and children alike. The PC usually specifies whether any mandatory counseling is or is not confidential in such instances.

Other models deem referrals to third-party services as falling under the PC's recommendation power. In those distinguishable contexts, PC referrals to third-party services are not immediately binding upon the parties. The recommendations are typically made to the court, whereupon the court may choose to set forth the recommendation ' or some variant of it ' in an order, with or without argument or input from counsel.

Access to Non-Parties, Children and Privileged Information

The PC model typically provides for access to any persons involved with family members, such as physicians, mental-health-care providers, school officials, guardians ad litem, custody evaluators, or other professionals involved with the family. The PC nearly invariably meets with children who are 7 years of age or more. It is usually helpful for the PC either to meet with the children, or to receive input from a therapist who knows the children well and meets with them on an ongoing basis. The PC can never be the child's therapist, however, because of the obvious role conflict and differing standards of confidentiality.

PC models often provide access to all orders and pleadings filed in the case, to school and medical records of the children, and to reports of psychological testing or evaluations that have been performed. In many jurisdictions, the standard stipulation includes detailed language to afford the PC with access to various professionals who might be involved with the family, currently or in the past, and to any other information the PC might find useful to work on the case. Additionally, provisions may be included to permit the PC to hire a consultant to assist in addressing particular issues. Parties are almost always directed to execute releases and consents to facilitate the PC's investigation. Toward that end, orders of appointment almost invariably contain provisions to the effect that the parties will agree to execute the necessary releases and consents.

Submission and Exception to PC Recommendations or Reports

In some cases, a decision made by the PC is filed as an order of the court, is immediately binding, and subject to review and modification by the court, with the objecting party required to file a motion to bring their objection to the court. A detailed protocol, with procedural requirements and timelines for filing objections should be part of the order of appointment. The standard of review may vary according to the likely effect of the decision on the parent-child relationship.

Term, Removal and Resignation

The usual term for PC appointment is about 2 years. During the period of appointment, the PC may be removed or resign by legal process. The intervention may thereupon end, or the court may arrange for a substitute PC. The reason for resignation is often the PC's conclusion that the process is no longer ' or has never been ' productive, or simply due to the nonpayment of fees. At least one state has a fund set up to subsidize PC involvement. However, the length of the intervention is strictly limited.

PC removal may be requested by either or both parents, by application on notice. The determination of whether or not good cause for the removal exists is typically reserved by the courts. Where both parties request and agree that the PC should be removed, however, the court may grant the application without exercising its discretion in the name of good practical sense. PCs may be reappointed after term expiration by the court, sua sponte, upon application of either party, or at the request of the PC.

Good Cause for Termination, Modification or Reappointment

In most cases, whether or not there is a fixed term of appointment, the court should be permitted to terminate or modify the PC appointment for good cause upon application by either party or by a guardian ad litem, at the request of the PC, upon the agreement of the parties and the parenting coordinator, or by the court, sua sponte. Good cause includes, but is not limited to:

• a determination that the parties no longer need the assistance of a PC;
• the PC is unable or unwilling to continue to serve;
• an impairment on the part of a party which significantly interferes with participating in the PC process; or
• lack of reasonable progress over a significant period of time despite the best efforts of the parties and/or the PC.

Some PC processes may involve a grievance procedure to disqualify a PC on any grounds applicable to a judge or arbitrator.

Immunity

In states where the PC is appointed pursuant to court order, the PC typically receives quasi-judicial immunity, notwithstanding those complaints that can nonetheless be filed with professional licensing boards by aggrieved individuals. In states where there is no statutory immunity, local rules might provide that the PC is appointed as an agent of the court and is not liable for decisions made or information provided while serving in the capacity of PC.

Part Four will conclude by providing a comprehensive PC order of appointment.

Curtis Romanowski, a member of this newsletter's Board of Editors, limits his practice to New Jersey Divorce, Matrimonial Law, Child Custody Law and Family Law. He is President, Collaborative Family Institute, LLC, an organization dedicated to positive transformation of divorce, child custody and parenting disputes in America. Romanowski is a Court-Appointed Chancery Division Mediator, Matrimonial Early Settlement Program (ESP) Panelist & Parent Coordinator / Parenting Coordinator. He is included on the Presiding Judge's list of Counsel for Children & Guardians Ad Litem.