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MANAGING HIGH CONFLICT CHILD CUSTODY
CASES – COURT RESPONSES TO
PARENT COORDINATOR AND DOMESTIC CASE MANAGEMENT *Previously published as part of materials presented at
the American Bar Association Family Law Section Spring, 2000 conference at One of the most emotional and highly charged
areas of domestic relations practice involves child custody and visitation
disputes. Parents often become emotional when faced with the loss of ongoing
contact with their children. In some situations, however, conflict between
parents regarding parent-child contact rises to such a level that it becomes
an all-consuming battle over every aspect of parent-child contact. Instead of
negotiating on a day-to-day basis for the best interests of the child,
arguments between separated parents arise about major and minor concerns
– whether it be the religious doctrines to which the child is to be
exposed or the level of the child’s involvement in extra-curricular
activities. Instead of respecting the other parent’s relationship with
the child, every contact provides another opportunity to show the world what
a bad parent is the other parent. The problem was highlighted in a study completed
in 1990: Each year approximately 2.5 million people
divorce, subjecting more than 1 million children to the losses of familial
breakup. Hostility in families can be greatly exacerbated by parents’
repeated failure to negotiate an altered lifestyle for the family which
provides for the children’s best interests. Interventions with highly
conflictual parents and their children must necessarily address the interface
between the mental health and legal professions. How families experience this
process must be carefully studied in order to create new strategies for
change, not only within the families, but also to facilitate the legals
system’s cooperation with mental health professionals.[i] This is the “high conflict” custody
case. In 1980 Wallerstein and “These families consume substantial time in
the courts, with mental health professionals, and in other social and
educational institutions within the community. It is these families that
family court judges are frequently called on to actively make decisions on
behalf of the children because parents are unable to disengage from
conflicted interaction with each other.”, and many studies have shown
how destructive such situations are to the children involved.”[iii] The problems in these cases is further
complicated by the fact that the legal principle almost uniformly applied by
courts to their determination of child custody matters is the “best
interests of the child” standard, a principle that almost every
commentator acknowledges results in a high level of uncertainty and,
often-times, increased animosity between the parents seeking a definition of
their respective parenting roles.[iv] The uncertainty in the legal principle to be applied
is further complicated by the fact that each of the various states has its
own way in which that principle has historically been applied, and the fact
that a principle as amorphous as the “best interests” standard
necessarily depends on the knowledge, abilities and interests of the judge to
whom the case is assigned. As was noted in an article on the especially
difficult area of parental relocation: Any analysis of the best interests of children is
approached based on assumptions about
the needs of the children emotionally and psychologically. Judges may rely
upon a variety of sources for their assumptions. Some may be based on life
experiences – as parents, as sons or daughters, as people who have come
into contact with perhaps hundreds of divorced families in court. The
judicial system assumes that judges (as with jurors in jury cases) are able
to rely upon their common sense and experience, developed through many years
of daily living and general education, in deciding issues involved in a
lawsuit. However, those experiences are just as easily to be atypical as
typical. What a judge may learn from the divorcing families who have
contested cases may not be applicable to other divorcing families. Yet, we
want to have good information about how the individual cases we deal with may
fit into the larger picture, along with any information that might suggest
ways to assist the families involved in individual cases.[v] Given such an undefined standard and the fact
that the persons charged with these decisions have their own vastly different
view of how to apply those principles, there are concerns about the ability
of the courts to resolve issues of child custody and parenting time in an
objectively fair and appropriate manner. At the same time the opposite issue is raised
about the appropriateness of leaving to judges (who are most often trained in
adversarial processes and the application of objective principles of economic
responsibility and financial liability) issues of an inherently subjective
character when those issues are wrought with so many subjective results and
psychological ramifications and interactions.[vi] Adding to these general concerns is the fact that
the courts have, in recently years, been inundated with ever burgeoning case
loads in all types of litigation, but especially in domestic relations
filings with an accompanying increase in filings of cases in which children
are involved.[vii] To this
increasing case load has been added other complications to deciding these
cases, such as the increasing mobility of society, the de-emphasis or
abolition of clear-cut rules of decision such as the “tender
years” and the “maternal preference” doctrines and the
increasingly active involvement of parents in their child’s lives[viii] have led to an ever increasing number of
emotionally draining and hotly contested child custody disputes. With these increasing case loads and increasing
numbers of high conflict custody cases, the courts have sought new ways to
deal with these emotional cases and by trying to find other avenues to
cumbersome court procedures and solutions sometimes ill-suited for the kind
of emotional and psychological involvement seen in the high-conflict case. At
the same time professionals from different disciplines dealing with the
fallout from conflicted child custody cases have become increasingly
interested in trying to find ways in which to deal with these “high
conflict” child custody cases.[ix] In the past, courts have attempted to control these
situations by dividing residential care between parents in such a way that
there is limited contact between the parents, limiting access to the child
when in the other parent's care, or the complete denial of any access by a
parent in some cases in which the Court deemed the conflict so severe that it
was believed to be the only "sufficient" way to control adverse
impact on the children. These methods have, however, proven insufficient,
either because they burden the courts by requiring that the courts
continuously address the conflicted case through motions filed to bring
matters before the court, or because the means used by the trial courts to
limit contact between parents has proven too restrictive to pass muster with
the state’s appellate courts.[x] Some have suggested that child custody cases be
removed completely from the purview of the courts.[xi] Others have suggested that states create
specialized family courts staffed by judges with special interest and
training in the needs of domestic relations cases, or even more specialized
custody courts. Still others have suggested that the courts require mediation
or other alternate dispute procedures and institute a system to identify
potentially high conflict cases early in the process so that special services
and processes can be used to head off problems.[xii] Courts have also attempted to work within the
existing framework of civil rules and marital counseling statutes to provide
for various means of alternate dispute resolution in these highly charged
cases. While restriction of access and creative divisions of custody may be
deemed sufficient in some cases, in those cases in which there is no direct
danger to the child manifested by past incidents of child or spousal abuse,
or where the "high conflict" is exhibited in continuous contentions
that the other parent engages in activities that minimally interfere in the
time a parent spends with the child, or where the parents dispute is in being
able to deal with the ongoing give and take of parenting a child separately,
some state's courts and legislatures have determined that the situation may
be improved by enlisting an extra-judicial agent to work with the parents,
children, attorneys and other professionals in trying to assist these
"high conflict" parents to a point where, hopefully, they are able
to function in a less confrontational and conflicted manner in interactions
regarding their child. To this end, many courts have required that
parents submit any disputes regarding custody or visitation to a neutral
mediator prior to bringing the issue to court for ultimate resolution.[xiii] These methods of dispute resolution have also
not been successful, however, primarily because parents involved in the
high-conflict case tend to be primarily interested in either defending that
parent’s own rights or causing the other parent ongoing difficulties
rather than in coming to a resolution of the dispute that will create some
stability for their child.[xiv] Because these more traditional ways of dealing
with high conflict cases have not worked, some courts have turned to some of
the extra-judicial methods of controlling the psychological and emotional
interactions of the parents involved suggested by the various professionals
who have sought ways to control these cases -- what have variously been
termed “parent coordinators,” “special masters,”
“wise-persons,” “custody commissioners,”
“coparenting counselors,” or “domestic case
managers.”[xv] Because agreement on alternate dispute
resolution methods in “high conflict” cases is almost impossible
by definition, implementation of the conflict reduction processes is
dependent on the courts. Under any of these “case management”
procedures, some person experienced in child custody matters and trained in
dispute resolution techniques is given authority to hear and mediate disputes
between the parents regarding their parenting relationship and make
recommendations or arbitration decisions in the event of an impasse. This
process is usually not a confidential process, but entails some kind of
reporting system to inform the court of disputes, agreements and
recommendations arising out of the case management sessions. As explained by
one authority, there are typically two “coparenting arbitration”
models: In the first, the coparenting arbitrator is
called on to arbitrate only when the parents cannot settle a specific
dispute. He or she acts solely as an arbitrator and does not perform
counseling or therapeutic functions for the family. In many of these
families, which are often identified by the extremity of their conflict and
multiprofessional involvement, a child therapist or a confidential mediator
is working with the family in an ongoing way. These other professionals or
the parents themselves call in the coparenting arbitrator when a specific
matter cannot be resolved. The advantage of this model is that arbitrators
have a distinctly separate role from the other professionals. They are a
private, neutral “court of appeal” who, over time, can develop a
great deal of in-depth knowledge about the family and the trust of its
members. The disadvantage is that it is more costly and cumbersome to add yet
another professional layer to the family system. In the second model, coparenting coordinators act
as the parenting counselor, mediator, or child therapist in an ongoing way
and exercise their right to arbitrate only when parents fail to agree on a
specific matter. A variation of this theme is where the existing
professionals in a case (e.g. therapists, mediators, special eduction
teacher) form an arbitration panel and render a consensual decision on
specific issues, whenever parents reach a stalemate. Whereas this second
model may be more economical, role confusion, boundary questions, and ethical
problems arise whenever professionals shift their primary function.[xvi] The courts that have explored using parent
coordinators have forged various methods by which the third party parent
coordinator is assigned authority to deal with the high-conflict case: (1) Ad
hoc orders by individual courts without an existing framework of rules; (2)
local court rule; and (3) state statute. Ad Hoc
System of Case Management . The
most common method presently used for appointment of parent coordinators is a
system of ad hoc orders issued by individual judges requiring parents
involved in high conflict custody cases to participate in programs set up to
reduce the conflict. Under this ad hoc method, a judge will refer high
conflict cases to an outside entity or individual for intense mediation,
arbitration or education regarding ways of resolving ongoing disputes. Judges
in Various courts in Although the authority under which many of these
orders are made is unclear, judges may make such referrals under existing
statutes or court rules authorizing parent or marital counseling, parenting
education programs, appointment of arbitrators, psychological testing and
evaluation, appointment of guardians ad litem, special child advocates, or
special masters. Local On the other hand, at least two courts in The Marin County, California Superior Court,
however, has a rule that appears to have been drafted with high conflict
cases specifically in mind.[xxiv] This rule provides that a special master appointed
under the rule shall prepare and forward to the Court a written report
including any recommendations and factual basis therefore, on matters
regarding issues pertaining to the minor children. Notably, the rule provides
that such a special master may only be appointed by stipulation and that
“[s]hould either party refuse to agree to appointment of a Special
Master, a Special Master will not be appointed.”[xxv] The rule also specifically limits the authority
of the Special Master by providing that: No Special Master will have authority to make
orders on subjects which are, by law, reserved to the Court for adjudication,
such as substantial changes in time sharing arrangements, an award of
physical custody, an award of legal custody, or orders which substantially
interfere with a party’s contact with his/her children.[xxvi] Statutory
Enactment. Only one State has
enacted a statute authorizing the use of “case managers.” Legal Concerns Regarding Case Managers. Although some courts believe they have an
inherent ability to appoint extra-judicial experts, such as a “case
manager” power to assist in determinations of child custody, some
appellate courts have been circumspect on the authority for such appointments.
For example, the Notwithstanding the need for some new approach to
these highly conflicted cases, many concerns have been raised about the
efficacy and appropriateness of courts using parent coordinators empowered to
break deadlocks between fighting parents by imposing the parent
coordinator’s own determination of how the dispute should be resolved.
Among the concerns brought forward has been a concern about the
qualifications of persons appointed, the background and training required,
the ethics rules applicable to the parent coordinator,[xxx] concerns about conflict of interest and bias,[xxxi] a concern that the powers of the parent
coordinator be neither too narrowly defined nor too broadly described, a need
to know the basis on which decisions of the parent coordinator are based,
and, perhaps most importantly, a due process concern about what remedies are
available when a parent does not like a decision of the parenting
coordinator. One of the problems with courts assigning their
decisional powers to an extra-judicial agent is highlighted by the Colorado
Court of Appeals case of In re Marriage of Here, the testimony of the child’s
psychologist supported the temporary postponement of overnight visits until
the summer of 1996. However, we know of no authority that would authorize the
trial court to defer indefinitely the decision for exercise of overnight
visitation and to delegate that decision to the child’s psychiatrist. The record here shows that the husband agreed to involvement
of the guardian ad litem, but he did not agree to deferral of any
decision-making autority to the psychiatrist. And, in our view, the trial
court’s finding that pushing the child into overnight visitation too
soon would result in long-lasting psychological damage to the child does not
support the order granting the psychiatrist the authority to determine when,
and if, overnight visitation is in the best interests of the child.[xxxiii] Similarly, in In
re Marriage of McNamara[xxxiv] the trial court granted an appointed guardian ad
litem the power to modify the parenting time schedule without need of the
parties to return to court. In finding that such a delegation was improper,
the Court of Appeals stated: [Under the laws of
Colorado] a parent not granted custody of the child is entitled to reasonable
parenting time rights unless the court finds, after a hearing, that parenting
time would endanger the child’s physical health or significantly impair
a child’s emotional development. Hence, the statutory scheme requires
the trial court itself to make decisions regarding parenting time, and it may not delegate this decisional
function to third parties. Hence, we conclude that this delegation of
authority to modify parenting time was error.[xxxv] The problems regarding delegation of judicial
authority were highlighted in Although the court upheld the order in Chantal
S., it implicitly recognized that an order may be improper for delegating
judicial authority to a private therapist. This is consistent with findings
of improper delegations of judicial authority to private individuals in other
contexts, and with the prohibition in the California Constitution against
delegation of duties other than subordinate judicial duties. (See The order in our case differs significantly from
the order reviewed in Chantal S. The order before us states that Father has
"no visitation rights without permission of minors' therapists." It
neither requires that the therapists manage visitation ordered by the court,
nor sets criteria (such as satisfactory progress) to inform the therapists
when visitation is appropriate. Instead it conditions visitation on the
children's therapists' sole discretion. Under this order, the therapists, not
the court, have unlimited discretion to decide whether visitation is
appropriate. That is an improper delegation of judicial power. Although a
court may base its determination of the appropriateness of visitation on
input from therapists, it is the court's duty to make the actual
determination. We could speculate that the court intended to allow
visitation only when father had made progress in his therapy or that it
intended visitation to begin only when the children no longer exhibit
regressive behavior when told of upcoming visits. The problem is that the
order is open to numerous interpretations and thereby fails to provide the
therapists with any guidelines for "facilitating" the visitation.[xxxvi] Even when the appellate courts have approved the
appointment of special masters by trial courts to assist in the determination
of issues the appellate courts have been cautious of the procedures used by
the trial courts in following the recommendations made by those masters. For
example, although not a domestic relations case, in Digiacobbe vs. Sestak,
the Delaware Supreme Court held that though “judges in the Court of
Chancery have both inherent and statutory power to refer any matter within
the court's jurisdiction to a master [and they] may delegate to a master full
authority to address all issues in controversy from the outset of the case
through post-trial submissions[,] [t]he master is not a judge. . . , so the master's rulings and report are not
final until they have been reviewed and adopted by a judge. Timely objections
to the master's findings and conclusions must be reviewed de novo by the
judge and, for a review of the evidence to be meaningful, there must be a
transcript of the proceedings before the master.” Since the trial judge
could not undertake such a review in the Digiacobbe case because there
was no transcript, the Deleware Supreme Court vacated the lower court deicion
and remanded the case “for further consideration of the master's report
after the record has been transcribed.” As courts seek out ways to deal with highly
conflicted families and try to control their over-crowded dockets, it is
probable they will increasingly turn to extra-judicial means of managing
these disputes. Case management through parent coordinators may have some
advantages to the traditional way of dealing with high conflict custody
cases. The challenge to the legal profession will be to
work for better management of these situations with an eye toward reducing
conflict and making better lives for the children affected by these disputes
while preserving the due process rights of the parents involved. *******************************END****************************************** |
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