The Massachusetts Appeals Court recently upheld a Probate and Family Court contempt judgment where the defendant had not violated any specific order of the court, in the important case Leon v. Carpenter.
The parties had agreed at the time of divorce that they might someday appoint a parenting coordinator, with the power to make binding decisions on parenting matters, with the reservation that either party could seek court review of the PC’s decisions. Later, they hired a PC, who proceeded to issue decisions in a series of emails, from which the mother did not seek judicial review, and with which she did not comply. A trial judge sanctioned her with a contempt finding and associated remedies; whereupon, and the mother appealed.
She argued that there was no order made by a judge to disobey. The Appeals Court responded that the voluntary undertaking of the parties to comply with the potential PC’s future orders was itself enough to form the core of an unequivocal command, without reference to any specific possible order.
The mother complained that the court had impermissibly delegated its parens patraie role as final arbiter of all things custodial. The Appeals Court disagreed because the trial judge hadn’t imposed the PC on the parties and because some right of review was included in the underlying agreement.
The mother contended that the PC’s decisions had no force since the father had not sought their confirmation by the court, but the Appeals Court held her to her agreement’s words: the burden was on her to seek review; she didn’t; so she was stuck.
The Appeals Court “take” is consistent with many of its family law arbitration cases, including last summer’s Gravelin v. Gravelin, which reiterated the parties’ ability to opt out of the public system in favor of private family law arbitration generally, with the implication that some form of review may be required, but without clear articulation of it form, format or substance.
It is unfortunate that we still don’t have real clarity on the level of review implicated by the cases, but Leon does seem to support two important points:
- That arbitration of child matters does not require any heightened level of review, let alone any specific kind (though we still believe that there must be some inherent “best interests’ standard); and
- The parties can agree to be bound by an arbitrator’s decision that arises from an agreement that was made well before the onset of the controversy that is arbitrated.
Both points touch on highly sensitive matters for those who resist the spread of family law arbitration. It really is time for a statute to codify this important remedy in a way that reflects societal consensus on its acceptability, standards and boundaries.