Probate and Family Court New Standing Order 1-17 on Parenting Coordination: A Baker’s Dozen of Interesting Aspects, Plus One
Wednesday, March 15, 2017
[Preface: We do not accept parenting coordinator assignments, but as divorce mediators, we do address parenting coordination in agreements from time to time, with clients. Our observations follows the order of appearance in the rule and not any editorial priority.]
- No review process for binding PC decisions: Rule (1)(e) asserts that a PC appointment does not divest a court of continuing jurisdiction over child matters “…even where the parties have agreed to [PC] binding decision-making authority...” But, Rule 1-17 provides no special limitation on the scope of issues on which an agreed PC may make binding decisions. More surprisingly, there is no requirement that a party have the right to seek court review of a binding PC decision, nor a defined action to facilitate same, and no standard of review. Does this undermine parens patriae?
- Training of PC’s: Rule (3)(c) mandates 6 hours of continuing education for PC’s, including lawyers. According to Lawyerist.com, Massachusetts stands among only 5 states that do not have mandatory lawyer CLE, https://lawyerist.com/40252/how-wacky-are-mandatory-continuing-legal-education-rules/) For the mental health community, this is nothing new.
- Joint petition required: Whether intended or not, Rule (5)’s introductory clause requires that PC agreements may only be proffered to the court by joint petition for modification (Form CJD 124). This seems odd when many appointments come at the time of divorce.
- Designations of PC’s: Rule (5)(b)(i) requires that agreements to appoint a PC identify the person selected, since the PC must sign the agreement. Gone are the days of agreement deferrals, such as “…to be selected by the parties within 30 days.” Smart.
- Specified duties: Rule (5)(b)(iii) requires that agreement clearly specify (and inferentially, limit) the PC’s duties. This is a critical need.
- Limited duration by agreement: Agreements must specify duration of the PC’s engagement in Rule (5)(b)(iv), subject to remedies to shorten or extend (Rule (14)). Co-parenting problems that persist indefinitely suggest that PC intervention is insufficient.
- Spending cap: In addition to specifying fees and each party’s responsibilities to pay, Rule (5)(b)(v) mandates a maximum obligation for each party over the life of the PC’s appointment. This may be observed more frequently in the breach.
- Colloquy: Rule (5)(c) subjects every PC agreement to specified questioning by the court before its approval. Especially given observation #1, this is essential.
- Merging agreements only: Rule (5)(c) introduces the colloquy requirement with “Before…incorporating and merging the agreement in a judgment…” It appears that the court may not approve a surviving PC provision. We guess that the Probate Court does not want the “countervailing equities” standard to get in the way of ending PC interventions.
- Limited duration by court initiative: A court-initiated PC appointment may not exceed the duration of litigation, or 2 years after judgment under Rule (6)(d), the latter subject to 1-year extensions (Rule (14)(a)(3). Ibid., Observation #6.
- Limited duties: Rule (7) tightly regulates a PC’s permissible duties, without any catch-all flexibility. Maybe expedient, but shouldn’t competent adult be able to fine tune this?
- Not mandated reporters: Rule (10)(b) relieves PC’s of mandated reporter obligations, in the event of suspected abuse or neglect. Presumably this does not excuse PC’s who are mandated reporters by professional licensure; but lawyers, who are not, do not take on this added burden.
- Standing: PC’s have may independently bring motions or complaints to seek appointment of a G.A.L to waive a child’s psychotherapist-patient privilege, under Rule (10)(c). Yikes! This rule absolutely be part of the colloquy, if it needs to be in the rule at all.
- No conflicts: Rule (10)(c) bars G.A.L.’s or other professional in the family’s life already from serving as PC. This reflects this professional consensus, though, in a way it is too bad that competent parties can’t be trusted to waive one of these known conflicts, for someone who has already earned their trust, with knowledge and after advise of counsel.