Sad child torn picture.jpgIn an effort to help parents in high-conflict decision-making disputes, New York courts are now appointing “Parenting Coordinators.”

Professor Andrew Schepard of the Hofstra University School of Law in his  article, “Parenting Coordinator for High Conflict Parent” N.Y.L.J., 5/8/03, p. 3 col. 1, explained the role of Parenting Coordinator as “a combination educator, mediator and sometimes-therapist who helps parents develop conflict-management skills and decides disputes if they cannot. . . . [B]y supervising parenting and resolving conflict, a Parenting Coordinator helps high-conflict parents develop a tolerable working relationship (usually parallel as opposed to cooperative parenting) for the benefit of their children.”

In her 2007 article “Working with Parenting Coordinators” in the Summer, 2007 issue of the Family Advocate, the publication of the American Bar Association’s Section of Family Law, Eve Orlow, Ph.D., noted that a Parenting Coordinator mixes counseling and parent education with mediation and arbitration.

New York’s 8th Judicial District (the extreme west) has formalized the appointment process. Its court rules note:

Parenting coordination is a child-focused alternative dispute resolution (ADR) process in which a mental health or legal professional with mediation training and experience assists high conflict parents to implement their parenting plan by facilitating the resolution of their disputes in a timely manner, educating parenting about children’s needs. With prior approval of the parties and the court, the PC may make decisions within the scope of the court order or appointment contract.

The overall objective of parenting coordination is to assist parents in high conflict to implement their parenting plan, to monitor compliance with the details of the plan, to resolve conflicts regarding their children and the parenting plan in a timely manner, and to protect and sustain safe, healthy and meaningful parent-child relationships. Parenting coordination is a quasi-legal, mental health, alternative dispute resolution process that combines assessment, education, case management, conflict management and, upon consent, sometimes decision making functions.

New York courts seem to favor therapeutic or forensic evaluation backgrounds, rather than mediation skills and experience. Moreover, as Parenting Coordinators in New York are without final decision-making power, they may simply add another layer to the judicial process; in some instances only fueling the bitterness of one or both parents.

New York’s judiciary securely guards its exclusive power to make custody and visitation decisions.  Thus, in its October, 2011 decision in Silbowitz v. Silbowitz, the Appellate Division, Second Department reminded us that:

Although a court may properly appoint a Parenting Coordinator to mediate between parties and oversee the implementation of their court-ordered parenting plan, a court may not delegate to a Parenting Coordinator the authority to resolve issues affecting the best interests of the children.

Although the Parenting Coordinator may be empowered to decide an issue when an agreement between the parties cannot be brokered, that decision is always subject to judicial oversight.” Giving a Parenting Coordinator the authority to resolve issues is an improper delegation of the court’s authority to resolve custody and visitation matters. Edwards v. Rothschild, 60 A.D.3d 675, 875 N.Y.S.2d 155 (2nd Dept. 2009).

In his 2005 decision in LS v. LF, 10 Misc3d 714, 803 N.Y.S.2d 881, Kings County Supreme Court Justice Jeffrey S. Sunshine appointed a Parenting Coordinator to assist a father to re-establish visitation with his 12-year old daughter. According to Justice Sunshine, the actions of both parents caused the child’s reluctance to visit the father. The case “brings forth the constraints that courts have in a modern society to be involved in the day to day disputes of parents . . . .” Justice Sunshine viewed the Parent Coordinator as the neutral individual who could verify that the child understands the importance of visitation, that limits and plans for the visitations are discussed by the parents and that the efficacy of plans or alternative plans are coordinated. The Coordinator can act as a go between the parents and child to assure that there are open lines of communication and assist the parties in establishing regular visitation with the child.

Justice Sunshine also may view the Parent Coordinator as the court’s eyes and ears in future litigation: “The Parent Coordinator can be an accurate reporter of events leading up to visitations, plans and hopefully successful visits.”

In D.Z. v. C.P., 856 N.Y.S.2d 497 (2007), Queens County Supreme Court Justice Jeffrey D. Lebowitz appointed a psychologist as Parent Coordinator, but only after giving the mother final decision-making authority on health issues, and the father final decision-making authority on education,. The parents were directed to meet the Parent Coordinator “with and without their daughter so as to begin a process of learning to allow them to communicate in a manner commensurate with their daughter’s best interest and with their obvious intellectual abilities.”

If a Parenting Coordinator can truly eliminate disputes that tax the time, money and emotions of the parties, and the judicial system, such would appear to be a warranted imposition on feuding parents. However, where it has been pre-determined which parent has the final say, the Parenting Coordinator may only serve to waste resources and fuel resentment.

In his 2008 decision in J.J.M. v. M.E.S., 867 N.Y.S.2d 375,  Nassau County Family Court Judge Conrad D. Singer awarded joint “legal” custody to the unmarried parents. The parents were directed to endeavor to reach joint decision regarding their 14-year old child’s major education, health, mental health issues. Where a joint decision is not reached, a Parent Coordinator was to be used, with the cost to be shared equally. However, perhaps defeating the Coordinator’s efforts before they started, Judge Singer directed that should the services of the Coordinator still render a joint decision unreachable, the mother shall have final decision making power over such education, health and mental health issues.

In E.S. v. R.S.,  873 N.Y.S.2d 233 (2008), Judge Singer, dealt with a custody dispute of the 4-, 6- and 9-year old children of married parents who were living apart. Judge Singer found neither parent unfit and awarded joint custody; Judge Singer not believing that the relationship had broken down to the point where the parties would be unable to communicate meaningfully when it came to making decisions regarding their children. Accordingly, Judge Singer declared that the parents shall share decision-making on all major, non-emergency medical, educational, religious, financial and general welfare decisions, while day-to-day decisions shall be decided by the parent with whom the children are residing at that time.

However, Judge Singer determined that should the parents be unable to reach a joint decision, a Parent Coordinator shall be consulted. The parents were required to meet at least once on each issue with the coordinator before requesting judicial intervention on whatever issues could not be agreed on. No parent was given final decision-making powere, but the father was directed to bear the full cost of the Parent Coordinator.

Placing the expense burden for the Parent Coordinator on only one parent is problematic. To begin, costs should reflect the parents’ respective financial positions. Ragone v. Ragone, 62 A.D.3d 772, 877 N.Y.S.2d 909 (2nd Dept. 2009).

However, in all cases the burden should be shared. Neither parent should have a financial incentive to be “difficult.”

Thus, in Raviv v. Raviv, Nassau County Supreme Court Justice Anthony J. Falanga on a post-divorce application for a change of custody, declined to award sole custody of the children to the mother, but instead appointed a Parenting Coordinator to help the parties meet the cooperation obligation inherent in their joint custody. Justice Falanga directed the father to pay 100% of the Parenting Coordinator’s fees. On appeal, the Second Department modified the decision (64 A.D.3d 638, 884 N.Y.S.2d 81 [2009]. The appellate court agreed that the parties needed professional help in overcoming their difficulties, but held that in the absence of any clear indication that one party was more culpable than the other, the parties should share equally in paying the fees of the Parenting Coordinator.

If the court can identify the “more difficult” parent, that parent should bear the higher burden. Thus, in Lew v. Sobel, 46 A.D.3d 893, 849 N.Y..S.2d 586, a 2007 decision of the Appellate Division, Second Department, such was the reasoning behind the court reapportioning the costs for the “therapeutic visitation facilitators,” making the mother bear 75% of the expense.

In NK v. MK, 873 N.Y.S.2d 233, Kings County Supreme Court Justice Jeffrey Sunshine announced he would impose a series of fines upon the mother if she continued to prevent even one visit with the child’s therapist or if she failed to sign a retainer and fully and completely cooperate with the Parent Coordinator.

In D.G. v. S.G., 901 N.Y.S.2d 905, a 2009 decision of Westchester County Family Court Judge Colleen Duffy, it was found that it was appropriate to burden the father with 75% of the entire cost of the Parent Coordinator in light of the father’s conduct. In her 2009 decision in J.H. v. S.P., 901 N.Y.S.2d 907, Judge Duffy ordered the parents to meet at least once on a disputed issue with a Parent Coordinator before requesting any judicial intervention, but hear directed the mother to bear 75% of the cost.

In a painstaking decision made earlier this year, New York County Supreme Court Justice Ellen Gesmer, in M.R. v. A.D., 32 Misc.3d 512, 928 N.Y.S.2d 429, rejected the appointment of a Parenting Coordinator. After a through review of the evidence, and as neither parent was sufficiently better than other parent to warrant an award of sole custody, Justice Gesmer awarded the parents “parallel custody” of their 6-year old son with significant learning disabilities. The father was given primary custody during school year, and the more permissive and disorganized mother would have primary custody during summer and other school breaks.

Justice Gesmer noted that neither parent communicated well with other parent. The court had low expectations of both parents’ abilities to communicate effectively with each other or to make decisions jointly. Therefore, the court refused to direct the parties to use a Parenting Coordinator, mindful that constant consultation is only likely to exacerbate the differences between the parties.

Instead, given that each parent had shown strengths in decision-making for their son in different areas, and in light of the considerable level of acrimony between the parties, Justice Gesmer defined subject areas, or “spheres,” in which each party would be the final decision maker. The father was given decision-making authority in education and medical areas; the mother in the choice of summer camp or activity, extracurricular activities, and religion. For any major decision, the parent to make the decision would have to advise the other of an approaching decision, the time frame in which it must be decided, and the parent’s proposed decision. The other parent would be given the opportunity to comment and provide alternatives. However, the decision of the designated parent would be final.

To make its way through to decision, a custody dispute may involve the efforts of the parents, their attorneys, the attorney appointed for the child(ren), a potential forensic evaluation by a mental health professional, a probation department evaluation, consultation(s) with court-staff social workers, participation in P.E.A.C.E or other parent-education programs, and interview(s) by the judge with the child(ren). It is emotionally-charged and time-consuming. Indeed, the issues and facts may change over the years that it may takes before a decision is reached. The dispute itself may do more damage than an award to either parent.

After all of this, appointing a Parenting Coordinator to enhance the parties’ ability to communicate may be far too little and way too late.