Divorce Mediation Blog

SJC Authorizes Parenting Coordinators, Just Not the Kind that Most People Want Bower v. Bournay-Bower

Wednesday, December 17, 2014

In the recent case Bower v. Bournay-Bower, the Massachusetts Supreme Judicial Court (SJC) authorized Probate and Family Court judges to impose a parenting coordinator on parties in “appropriate circumstances”. While not specified, such circumstances may be summarized as the bane of every family court’s existence: those in which parents, for whom chronic fussing is engrained, bug the court endlessly with petty and occasional non-petty disputes, which the court has little power to address effectively. The case is significant in that it permits the court to offload ceaseless disputes to private providers, for which the parties must pay (unlike court); and it will successfully divert many cases from the court’s docket, because it will provide a ready alternative outlet for issues that may be solved by persuasion, rather than authority.

What the court did not do was permit the courts to impose a parenting coordinator who has any binding powers of resolution. In Bower, the trial judge authorized the parenting coordinator to make decisions for the parties in the absence of agreement, subject to a party’s right to seek to vacate or alter the parenting coordinator’s “order” (a largely illusory “right”, since the issues most often involve imminent events, and that no procedure for review by a court actually exists). The SJC, quite correctly, vacated this portion of the trial court’s judgment, as an impermissible delegation of the court’s constitutional responsibility as parens patriae guardian of children’s best interests, when parents’ interests collide. We have long expected that this prohibition would emerge when a reviewing court addressed this important issue squarely.

As divorce mediators, what interests us more is something that the SJC did not say; namely, if parties give binding powers to a parenting coordinator in a domestic relations agreement that a Probate Court judge approves, may this agreement/judgment then be enforced? In other words, may competent and consenting adults delegate authority in a manner that the court may not do unilaterally? Since Bower does not mention this at all, negotiating parties still do not know if such a parenting coordinator agreement is valid.

Philosophically, we are of two minds. We are somewhat profoundly concerned by the concept of two competent parents giving decision-making authority over them and their children to any “stranger”. Yet, if they have the shared insight that their children will be better off for having a strong presence that can cut parental feuding, who is to say that they should not be able to do it? The SJC, perhaps; but they have not said it yet.

This is one example where we wish that the SJC had gone one logical step beyond the facts of the case before it, and settled this issue. Since they did not, people will continue to draw agreements that create parenting coordinators with privileges, until the courts resolve the question, one way or another, for good.

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