Is Parenting Coordination a Usurpation of Judicial Authority: Harmonizing Authority for, Benefits of, and Limitations on this Legal-Psychological Hybrid

Abstract

A “Parenting Coordinator” assists high-conflict parents in resolving disputes that arise in the parents’ efforts to jointly parent their children after a divorce. The Parenting Coordinator simultaneously educates the parents so as to minimize the degree and frequency of future conflict. While Parenting Coordination is not mediation or arbitration, it is also not counseling. Instead, Parenting Coordination is a “legal-psychological hybrid.” A trial court’s delegation to one in this hybrid role the power to determine a fit parent’s access to her child is arguably an improper delegation of judicial authority. While thirteen states have comprehensive schemes setting out their Parenting Coordination programs, other states are utilizing Parenting Coordination without statutory or rule-based authorization. Appointments without statutory or rule-based authority are particularly vulnerable to challenge. Whether a Parenting Coordinator’s appointment is an improper delegation of judicial authority depends on the authority for the appointment in the given jurisdiction and the terms governing the specific appointment. This Article analyzes the use of Parenting Coordination in jurisdictions that appoint Parenting Coordinators both with and without specific authority. From that analysis, this Article offers a paradigm for constructing an appointment that does not constitute an improper delegation of judicial authority. The paradigm will be useful to judges and practitioners attempting to utilize Parenting Coordination without specific statutory or rule-based authority. It will also be useful to courts and legislators considering adoption of a Parenting Coordinator rule or statute. The Article proposes that, where a trial court has some inherent authority to ensure the best interest of the children, with or without specific statute or rule-based authority, Parenting Coordination can be sustained. Combined with the substantial benefits of a qualified Parenting Coordinator, imposing appropriate limitations on the Parenting Coordinator’s role can incrementally diminish the argument the appointment is an improper delegation of judicial authority. Achieving an appropriate balance of benefits and limitations, in light of the basis for appointment authority, achieves a sustainable appointment.