Pa. High Court Reintroduces Parent Coordination Rules in Child CustodySeptember 13, 2018 – Articles The Legal Intelligencer
The Pennsylvania Supreme Court recently issued new parent coordination rules designed to reinvent coordinators and reintroduce them into the custody process, while cutting out the ambiguity and ad hoc application that plagued the system in its previous incarnation.
After a run as an extra-judicial tool of the family courts, parenting coordination was eliminated by rule in 2013. The legislative death knell of parent coordination followed concerns about the due process rights of the parties in custody cases and the validity and enforceability of coordinator decisions. These issues overrode any perceived or actual utility the process provided by filtering out high-conflict cases involving low priority issues. There was also the Superior Court case, A.H. v. C.M., (Pa. Super. 2012), a few months prior the abolishment of parent coordination that established the right to a de novo hearing from a parent coordinator’s decision. This decision limited the finality of parent coordination decisions —and thus some of the process’ immediacy and effectiveness—albeit in favor of a stricter application of due process.
When the Pennsylvania Rule of Civil Procedure 1915.11-1 (aptly titled “Elimination of Parenting Coordination”) became effective it immediately vacated any existing court orders on parent coordination. In the stroke of a pen, the elimination of parent coordination routed high and low conflict cases—all of which would likely suffer from increased litigation, adversarial hearings, and the lengthy timeline between petition and hearing—back into the judicial system. The rule eliminated a comparatively inexpensive and expeditious venue for addressing relatively minor issues.
Though the process had its flaws, the utility of parent coordination in diverting certain cases from the courts’ dockets was undeniable. In the five years since parent coordination was abolished, the process was reexamined, updated, and has been reintroduced into the code by the Supreme Court. The latest incarnation is effective March 1, 2019. The legislative intent of the updated Rule 1915.11-1 is plainly stated: “The parent coordinator shall attempt to resolve issues arising out of the custody order by facilitating an agreement between the parties and, if unable to reach an agreement, recommend a resolution to the court.” The rule pursues that goal by addressing four specific areas: an appointment and retention procedure inclusive of specific certification requirements for prospective parent coordinators; the coordinator’s scope of authority; restrictions on communication between the coordinator and the parties; and, most importantly, the recommendation and “appeal” process.
Qualifications and Appointment
The rule makes it clear that parent coordination is not intended for every case and is to be used sparingly. Coordinators will not be appointed where there is a protection from abuse order in effect, evidence of domestic violence during the case or within 36 months of the custody action or where a party has been the victim of a personal injury crime (such as criminal homicide, assault, kidnapping, human trafficking or sexual offenses, as well as arson, robbery and others).
Appointments are not to exceed 12 months, though they may be extended. Coordinators can withdraw from a case by petitioning the court. The parties will engage the coordinator and enter into separate written agreements identifying the retainer, hourly rate and other details. The rule mandates that county-implemented programs should address some details such as standard costs and fee limits (or ranges). Greater uniformity of coordinator experience and cost seems to be the goal.
An individual appointed to be a coordinator should be a licensed attorney or mental health professional with a master’s degree or higher and at least five years of legal practice or professional post-degree experience in psychiatry, psychology, counseling, family therapy or other comparable field. Under the previous incarnation, attorneys were appointed to this role, usually based on reputation and proficiency. Now, there is specified training through bar associations (or professional associations for nonlawyers) requiring five hours on the parent coordination process; 10 hours on family mediation; five hours of training in dealing with domestic violence; and 10 continuing education credits over a two-year period in the area of parent coordination, with a minimum of two hours on domestic violence.
Scope of Authority
The scope of authority for the coordinators is limited to specific areas: Implementing the custody order and resolving parenting issues between the parties; the locations and conditions for custody exchanges; temporary variations of the custody schedule due to special or unique events and circumstances; the children’s participation in “recreation, enrichment, and extracurricular activities, including travel”; child care arrangements; the child’s possessions (aka “she keeps the child’s clothes after every visit,” “he does not allow the child to bring her toys to my house”); addressing the communication between the parties and information exchanges related to legal custody issues; logistical issues for complying with therapy and other services for the child, court-ordered or existing; behavioral management of the children.
There is a catch-all provision included as well, but it carves out specific areas into which the coordinator may not delve: a change in legal custody; a change in physical custody; a change in the custody schedule (a permanent change, rather than a “temporary” one); a change in the child’s residence or their relocation; financial issues; legal custody decisions; any issues limited or reserved by the judge.
This language is clearly designed to eliminate concerns about coordinators addressing custody issues more appropriately reserved for the court. The inclusion of temporal issues such as logistical issues, child-care, and temporary changes to the schedule highlights that these issues are not to establish precedence in the custody case, but designed to address specific, isolated issues.
The new rule establishes that communications within the process—be it between parties and/or their attorneys and the coordinator—are not confidential and anything discussed or arising out of the process is subject to later examination if the matter goes to court. There is an emphasis on avoiding ex parte communication with the coordinator and maintaining a level playing field within the process. In my experience before 2013, parent coordinators avoided ex parte communication, but this version of the rule puts all involved on notice that while there is no record of parent coordinator hearings, there is also no expectation of confidentiality within the process.
Recommendations and Appeals
This is the most significant revamp of the prior system. Previously, “appealing” a parent coordinator decision may not have afforded the parties a timely and useful adjudication of the issue. Since family courts in the commonwealth often employ varying forms of civil procedure, if a county had no family court motion practice or a “family business court” then parties might be stuck going through the normal contempt or petition procedure (since these issues clearly would not be considered emergencies) resulting in weeks, if not months, before they could be heard.
Under the new system, after giving notice and speaking with the parties or counsel regarding the issue that is before the coordinator, the coordinator submits a written summary and recommendation within two days of the coordination hearing. This report will be provided to the parties and the court. From there, an objecting party has five days to file a petition for a record hearing before a judge, outlining the specific issues to be addressed on appeal.
If neither party appeals the recommendation, the court undertakes one of the following options: approve the recommendation and make it an order of court; approve the recommendation in part and hold a hearing on the remaining issue(s); remand the recommendation back to the coordinator for more specific information or decline to enter the recommendation as an order and conduct a hearing on the issues. Worth noting is that if an objection is made and a hearing is required, the recommendation will become an interim order pending a record hearing. This is an important aspect of the rule since the temporal or immediate nature of some of these decisions may render the recommendation moot even under this relatively short timeline.
Notwithstanding the impact the interim order has on the case, this new process greatly improves upon the old system by providing the courts clarity as to how to handle parent coordinator appeals, and gives the parties faster adjudication of the issues.
Parent coordination has returned, but with a new framework and guidance that will hopefully take the most effective aspects of the old parent coordination system and meld it with clearer guidelines and procedural rules. Custody cases are typically the most contentious and costly type of family law cases and rarely are improved by additional litigation and legal fees. By reestablishing parent coordination, the Supreme Court has returned a functional tool to the courts and attorneys and, in doing so, given litigants a more efficient way to resolve simple, logistical disputes.
Reprinted with permission from the September 13 issue of The Legal Intelligencer. (c) 2018 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.