A lot of people think that a long-standing area of law is completely settled and unchanging. Take family law, for instance: we’ve had the practices of marriages, divorces, adoptions, and so on for as long as anyone can remember, so nothing much can change there, right?
Oh, so wrong. Even the staid topic of family law in Pennsylvania has constant innovation and change. Ideas that spring up in one part of the county can be adapted, changed, and later discarded just as lawyers are getting used to them. Pennsylvania family law attorneys have to be quick on their toes.
A notable example: in recent months, the judicial systems in New Jersey and Pennsylvania decided to move away from the practice called parenting coordination. This will have profound impacts on certain divorce cases that are already underway, and some child support, child custody, and spousal support cases that are currently under review. If you are involved in one of these family law actions in New Jersey or Pennsylvania, you want to learn more about this significant change in state law.
Parental coordination: What is it? Why is it controversial?
Over the last decade or so—as you probably know—divorce mediation has become one of the most effective and helpful innovations in family law practice. Encouraging spouses to get together with a neutral third party has proven to be a positive experience that successfully produces a negotiated divorce settlement over 75 percent of the time, according to some measures. Divorce mediation has racked up such an impressive record that some states have made mediation a requirement before a divorce will be granted.
Other jurisdictions went a little further, and transformed the mediator position into something more powerful: the parenting coordinator. In these areas, a family law judge has the power to name an individual to serve as a parenting coordinator to handle disputes between the parties during and after a high-conflict divorce, or where there is ongoing conflict over child custody or visitation. These coordinators are usually attorneys, mental health professionals, or religious counselors.
The coordinator meets regularly with each party—together or separately—and listens to any complaints. She then will officially advise both sides on the actions to be taken. Those recommendations are equivalent to orders from a family law court, because the coordinator will report back to the judge if the parents are not complying with her advice.
By getting actively involved in managing family relationships, a parental coordinator steps far outside the bounds that would be permitted a divorce mediator. And that’s precisely why parental coordination has become so controversial. Critics charge:
- The coordinator takes on a portion of the state’s judicial power, even though she does not have to go through the (direct or indirect) voter approval process for other state officials.
- The coordinator may be appointed even if the parents do not approve of her.
- The coordinator has the power to trample basic rights of the parents, including constitutionally protected freedoms of expression, association, religion, and movement.
- Oversight of the coordinator’s actions may not be enough to guarantee parental rights.
- The coordinator does not (and cannot) have enough information about how the family works to make sweeping decisions about what would be in the best interests of the children.
- There are no real standards to measure whether parental coordination has been effective.
New Jersey and Pennsylvania take action on parental coordination
On November 13, 2012, the Administrative Office of the Courts announced that New Jersey’s Parenting Coordinator Pilot Program would end, effective November 26, 2012. This pilot program began in 2007 and was limited to five counties in New Jersey: Bergen, Middlesex, Morris, Sussex, and Union Counties.
On April 23, 2013, the Pennsylvania Supreme Court ordered changes in the Pennsylvania Rules of Civil Procedure to eliminate parenting coordination, effective on May 23, 2013. The rule change forbids judges from appointing people “to make decisions or recommendations or alter a custody order in child custody cases.” The rule also overrides any local court decisions that may allow appointment of parenting coordinators in Pennsylvania.
Notice the important difference in the law between these two states. While Pennsylvania has banned parenting coordination completely, New Jersey has only shut down a test program. Parenting coordination in New Jersey is still permitted, even if it’s not actively encouraged.
Legal responsibility flows back to the courts and the parents
If there are no more parenting coordinators in these two states to exercise legal authority, what happens next? We would say that the power to determine the course of a post-divorce family must flow back to the courts and to the parents—or ex-spouses—involved in each case. This should cheer those observers who thought that New Jersey and Pennsylvania parenting coordinators were operating outside the rule of law in the first place.
We can expect that regional providers of comprehensive divorce mediation services will step in to fill the gap. In fact, divorce mediation is likely to be a more useful process in many cases, because it encourages parents to come to a true meeting of minds on key issues rather than imposing a solution by the authority of a parenting coordinator.
Thomas J. Petrelli is a New Jersey and Pennsylvania family law attorney with extensive experience in using creative mediation approaches. He is available to work as a credentialed divorce mediator or can serve as legal counsel to a spouse who engaged in mediation or a litigated divorce. Contact Petrelli Previtera at (215) 523-6900 today if you have any questions or need to schedule a consultation.