COVER STORY

Parenting Coordination in Cases

By Judge Dale R. Koch and Amy Pincolini-Ford

arenting coordination is an emerging alternative dis- pute resolution technique being used to address the problems of highly litigious “high-conflict families”1 P and overburdened, overworked, and under-resourced family court systems.

This article examines coordi- tion to resolve these issues or may be court • religious observances and education; nation in high-conflict cases, the difference ordered to do so. • children’s travel and passport arrange- between high-conflict and domestic violence Concerns have been raised about the ments; cases, the safety implications of parenting co- court’s use of parenting coordination as an • communication between parties regarding ordination for abused parents and their chil- inappropriate delegation of judicial decision the children; dren, and the different approaches being used making. While those concerns are legitimate, • role of and with significant others to enhance the safety of abused parents and they can be largely alleviated by ensuring that and extended family; their children. judicial oversight continues in those cases and • substance abuse assessment or testing for Approximately 10 states have statutes, that the parties have expedited access to the either or both parents; and court rules, or local rules authorizing the use court in the event that there is disagreement • parenting classes for either or both of parenting coordination in with a decision made by the coordinator, as parents.8 cases.2 Another three states have pending well as if the need arises either to replace the Whether parenting coordination is parenting coordination legislation.3 coordinator or terminate the use of a parent agreed upon by the parties or court ordered, Parenting coordination seeks to as- coordinator. Thus, while enjoying the benefit the court must clearly specify the role of the sist high-conflict parents to implement their of quick, regular, and more economical ac- parenting coordinator. This is especially true , monitor compliance with the cess to a parent coordinator to help parties re- for domestic violence cases because parent- details of the plan, resolve conflicts regard- solve day-to-day questions and disputes, the ing coordination was designed primarily for ing their children and the parenting plan in a parties are not and should not be prohibited high-conflict cases. timely manner, and protect and sustain safe, from access to the judge handling their case. Although the goals of parenting coor- healthy, and meaningful parent-child rela- The role of the parenting coordinator is dination may serve high-conflict cases well, tionships.4 Parenting coordination is child not to make major decisions that would change parenting coordination presents safety con- focused5 and is designed to resolve disputes legal or physical custody from one parent to cerns in domestic violence cases. The terms between high-conflict parents arising out of the other or that would substantially change high-conflict and domestic violence are of- an agreed-upon parenting plan, or, in cases a parenting plan or court order.6 This type of ten used interchangeably within the courts where the parties cannot agree, a child cus- decision making is the court’s function. and are often confused, even though these tody and visitation order entered by the court. However, a parenting coordinator, if two terms have vastly different meanings.9 Rather than go back to court to resolve prob- given authority by the court, may resolve or “High-conflict” has been used to describe lems arising out of the parenting plan or court make recommendations about issues such as: more intense and protracted disputes that re- order, such as changes to or clarification of • health care management; quire considerable court and community re- parenting time, exchanges of the children, or • child-rearing; sources, and that are marked by a lack of trust alterations to the children’s appearance,6 the • education or daycare; between parents, a high level of anger, and parties may elect to use parenting coordina- • enrichment and extracurricular activities; a willingness to engage in repetitive litiga-

16 — NCJFCJ / summer 2006 tion.10 Because domestic violence cases are children may be unwilling to disclose ongo- parent who has had to flee the abuse and may marked by many of these same traits, they are ing threats or acts of violence or parenting be starting over. When a party cannot pay the often lumped into definitions of high-conflict. concerns about the abuser and may be at in- parenting coordination fees, does that party However, the term domestic violence refers creased risk of harm if information is shared run the risk of adverse actions by the parent- to an intentional pattern of coercive behavior, with the abusive parent.15 When information ing coordinator? While some states give the including physical violence, sexual violence, that puts a party at risk must be disclosed, the parenting coordinator authority to require one threats of harm, economic control, isolation, parenting coordinator should alert the party party to bear the costs of parenting coordina- insults, and emotional control within an in- of the disclosure in advance so that the party tion because of that party’s behavior,25 it is timate relationship in which one partner en- can take any necessary safety precautions.16 unclear whether domestic violence can be the gages with the purpose of achieving power • At least two states using parenting coordi- basis upon which to require an abuser to pay and control over the other partner.11 nation also specifically allow parenting coor- the entire cost of parenting coordination. As a result of the confusion in and in- dinators to exclude attorneys from parenting These concerns raise the question terchangeable use of these terms, domestic coordination conferences or interviews.17 whether the use of parent coordinators is ever violence cases are many times labeled as This raises the question as to whether this appropriate in cases involving domestic vio- high-conflict cases. However, the risks and type of practice may interfere with both par- lence, which mirror the same concerns that responsive strategies to each type of case ties’ due process rights. were initially raised about the use of media- are not the same, although they may overlap. • Most states that allow parenting coordi- tion in domestic violence cases in Multnomah The crucial differences between high-conflict nation in domestic violence cases do not County, Ore. However, the Multnomah cases and domestic violence cases include, address domestic violence training in the County experience showed that with appro- among other things: statute, court rule, or local rule authorizing priate training, procedures, safeguards, and • The power differential. In high-conflict parenting coordination;18 require only that opt-out provisions in place, mediation can cases, there is a relatively equal balance of the parenting coordinator receive a minimal improve the outcomes for victims of domes- power between the two parties, and the parties amount of training, such as one-time only tic violence over those which they might oth- are not making safety-based decisions. How- training;19 or require training on topics such erwise experience in contested court proceed- ever, in domestic violence cases this equality as anger management,20 which is an inappro- ings. Thus, although clearly not appropriate of power is not present because the abusing priate intervention in domestic violence cases in many cases involving a history of domestic partner believes that he or she is entitled to that could heighten the danger for abused violence, mediation continues to be a useful control the abused parent and children, and parents and their children.21 This practice tool if thoughtfully used by the courts in cus- the abused parent’s decisions often hinge on tody and parenting time disputes. whether these decisions will compromise his The terms high-conflict and Although the parent coordinator move- or her safety or that of the children. ment is a much more recent concept and its • The safety of the abused parent and chil- domestic violence are often use is not widespread, with the proper use of dren should be prioritized after separation in the same tools developed in the mediation domestic violence cases; this is not necessar- used interchangeably, even context, it should not be rejected out of hand ily a concern in high-conflict cases. in all domestic violence cases. However, its • In high-conflict cases, generally the conflict though these terms have vast- appropriateness is predicated upon ensuring does not provide the sole basis for choosing that the primary focus is the safety of abused one parent as the sole physical or legal cus- ly different meanings. parents and their children. todian of the children; however, in domestic In an attempt to provide safety for violence cases, many states mandate by law is especially problematic because parenting abused parents and their children and to ac- that the violence alone does provide a basis coordination is the rule, not the exception, knowledge the differences between high- for awarding physical or legal custody of the for domestic violence cases in many of these conflict and domestic violence cases, the As- children to the non-abusive parent.12 states.22 Domestic violence is a multifaceted sociation of Family and Conciliation Courts’ • In domestic violence cases, the abuser is issue and needs a parenting coordinator who (AFCC) Guidelines for Parenting Coordina- likely to minimize and deny the violence, and understands its complexity. Even though a tion,26 set forth specific practices and proce- the abused parent may be unwilling or afraid parenting coordinator may have some do- dures for parenting coordination in cases with to disclose the abuse or parenting concerns mestic violence training, he or she may still domestic violence that are separate and dif- about the abuser; however, in high-conflict be unable to assess the presence of domes- ferent from the parenting coordination prac- cases, both parents tend to be equally vocal tic violence, its impact on those directly and tices and procedures in high-conflict cases. about parenting issues.13 indirectly affected by it, and its implications The Guidelines recommend that the role of In addition to the mislabeling of domes- for the parenting of each party,23 or to assess the parenting coordinator should change in tic violence cases as high-conflict cases, cur- whether the abuser is using parenting coor- domestic violence cases from implementing rent parenting coordination laws also present dination for continued access to the abused the parenting plan to enforcing it. In enforc- safety concerns for abused parents and their parent and children. ing the plan, the parenting coordinator’s role children. For example: • Several states do not require parenting co- is to “ensure compliance with the details of • Many states with parenting coordination ordinators to conduct separate interviews and the [court] order and to test each request for laws or court rules call for parenting coor- sessions with parties in domestic violence variance from its terms with an eye to pro- dination specifically in high-conflict cases, cases.24 This practice does not prioritize the tecting the custodial parent’s autonomy27 to which these laws and court rules tend to de- safety of abused parents and their children make decisions based on the children’s best fine as domestic violence cases; or they call or protect abused parents from potential in- interests and guarding against manipulation for its use in domestic violence cases, without timidation or coercion by the abuser during by the abusing parent.”28 providing specific safety-focused practices parenting coordination. The Guidelines attempt to increase safe- and procedures.14 • Typically, both parties are required to share ty for abused parents and their children by • The parenting coordination process is the costs of parenting coordination, which requiring parenting coordinators to: not confidential, so abused parents and their may be virtually impossible for an abused (continued next page)

NCJFCJ / summer 2006 — 17 Parenting (continued) tic violence cases even if not identified as who has a history of perpetrating domestic such. Making parenting coordination safe violence against the other parent, a child, or • screen prospective cases routinely for do- for abused parents and their children requires a domestic living partner may not be awarded mestic violence; that states and parenting coordinators make sole legal custody, sole physical custody, • decline domestic violence cases if they do the safety of abused parents and their children joint legal custody, or joint physical custody not have the expertise and procedures in a priority, understand the difference between of the child); S.D. Codified Laws § 25-4-45.5 place to manage coercive tactics and the high-conflict and domestic violence cases, (rebuttable presumption regarding custody imbalance of power and control in such and have guidance on how to implement safe- only when there is a conviction of domestic cases; ty-driven parenting coordination approaches. violence); Wis. Code § 767.24 (rebuttable • be trained on domestic violence and child presumption regarding legal custody only). maltreatment on a continual basis; ABOUT THE AUTHORS 13Dalton, C., Carbon, S., & Olesen, N. • tailor techniques used in order to avoid Judge Dale R. Koch is Presiding Judge (2003). High conflict , violence, and giving the abuser the opportunity to con- of the Multnomah County Circuit Court in abuse: Implications for custody and visita- tinue the pattern of power, control, and Portland, Ore., and President Elect of the tion decisions, Juvenile and Family Court coercion; National Council of Juvenile and Family Journal, 54(2) 11, 12. • conduct interviews and sessions with par- Court Judges. 14See Ariz. R. Fam. Law Proc. 74; Idaho ties separately; Amy Pincolini-Ford, J.D. is a Project R. Civ. P. 16; R. Prac. Jefferson Fam. Ct. • adhere to all protection orders; and Coordinator in NCJFCJ’s Family Violence 707; N.C. Gen. Stat. § 50-90; Lucas County • take whatever measures are necessary to Department. C.P. Dom. Rel. R. 20.01; Okla. Stat. tit. 43 § ensure the safety of the parties, their chil- 120.3. dren, and the parenting coordinator.29 END NOTES 15See N.C. Gen. Stat. § 50-90 and Okla. Another approach to increasing the safe- 1Zollo, N., & Thompson, R. (Jan. 2006). Stat. tit. 43 § 120.3. ty of abused parents and their children who Protecting victims of domestic violence in the 16Dalton, C., Drozd, L., & Wong, F. may elect or be required to use parenting co- parenting coordination process, Quarterly E- (2004, revised 2006). Navigating custody & ordination is to provide an opt-out provision. Newsletter, ABA Commission on Domestic visitation evaluations in cases with domestic In Texas, for example, parties are allowed to Violence. violence: A judge’s guide, 22. Reno, NV: opt out of parenting coordination on the ba- 2Cameron, J., & Hastings, H. (Feb. 17, NCJFCJ. sis of domestic violence.30 When a party opts 2006). Parenting coordination: Expanding 17See Idaho R. Civ. P. 16 and R. Prac. out for this reason, parenting coordination ADR law, New Hampshire Bar Association Jefferson Fam. Ct. 707. can only go forward if the court finds that the Bar News, online at http://www.nhbar. 18See Colo. Rev. Stat. Ann. § 14-10- objection is not supported by the evidence. org/publications/display-news-issue. 128.1; R. Prac. Jefferson Fam. Ct. 707; Okla. When parenting coordination goes forward, asp?id=2881 (last visited April 5, 2006). Stat. tit. 43 § 120.3. the court must require safety measures be 3These states include Massachusetts, 19See Idaho R. Civ. P. 16; N.C. Gen. taken, such as ensuring that the parties not be New Hampshire, and Vermont. Stat. § 50-90; Tex. Fam. Code § 153.610. required to have face-to-face contact and that 4AFCC Task Force. (2006). Guidelines 20See Idaho R. Civ. P. 16 and Lucas parties be placed in separate rooms during for parenting coordination, Family Court County C.P. Dom. Rel. R. 20.01. parenting coordination.31 Review, 44(1) 164, 165. 21Supra note 16, at 26. 5Id. at 165. 22Supra note 14. 6Id. at 171-72 (Guideline XI(B)). 23Supra note 16, at 17. 7Id. at 172 (Guideline XI(E)). 24See Idaho R. Civ. P. 16; R. Prac. 8Id. at 171-72 (Guideline XI(B)). Jefferson Fam. Ct. 707; Okla. Stat. tit. 43 § 9Jaffe, P., Crooks, C., & Wong, F. 120.3. (2005). Parenting arrangements after domes- 25See N.C. Gen. Stat. § 50-90. tic violence: Safety as a priority in judging 26The Guidelines were developed by the children’s best interest, Journal of the Center AFCC Task Force on Parenting Coordination, for Families, Children, & the Courts, 6, 81, which included a diverse group of profes- 83. sionals from the courts and legal community, 10Id. at 83 (citing Janet R. Johnston child welfare community, domestic violence (1994) High conflict divorce, The Future community, mental health community, and Thus, a key component to making these of Children, 4, 165); ABA academic community. safety-driven approaches work is to provide Section (2001). High-conflict custody 27It is important to note that this termi- implementation guidance for states and par- cases: Reforming the systems for children nology implies that the custodial parent will enting coordinators. For example, more guid- – [Wingspread] Conference report and action be the abused parent; however, this is not ance is needed about screening effectively for plan, Family Law Quarterly, 34, 589. always the case. Many times the abusive par- domestic violence. This is also true of con- 11Id.; Dunford-Jackson, B. L., & Jordan, ent is the custodial parent. ducting separate interviews and sessions with S. (Winter 2006). Context is everything: 28AFCC Task Force, supra note 4, at parties. Without implementation guidance, Domestic violence in the real world, Synergy, 165. the safety of abused parents and their children 10(1), 6, 7-8. 29AFCC Task Force, supra note 4, at may be compromised. 12Approximately 24 states have rebut- 165-66, 169-71. Although parenting coordination was table presumption statutes stating that a bat- 30Tex. Fam. Code § 153.605 designed for high-conflict cases, the preva- terer should not be awarded joint physical 31Id. lence of domestic violence cases mislabeled and legal custody or sole physical or legal as high-conflict cases means that parenting custody. See Alaska Stat. § 25.24.150 (creat- coordinators are often working with domes- ing a rebuttable presumption that a parent

18 — NCJFCJ / summer 2006