“People are people, so why should it be, you and I should get along so awfully?”
– Depeche Mode.
In August of 2009 North Dakota law began allowing parent coordinators in family disputes. The intent behind the statute is to allow an additional means of alternative dispute resolution. The statute was enacted after an exhaustive search of the surrounding states and the significant shift in strategies applied by regional courts to deal with the specifics of domestic issues.
For those who practice in the field of domestic law, it is common to have the occasional case where the parties are locked in high conflict. While the case is pending, the court has a multitude of tools to aid in resolving the conflict. Some of those tools include knowledgeable counsel for the parties; mediation options; a parenting investigator; or other experts for opinions. However, once the case has been completed, and the final judgment has been rendered, often times this is when the highest point of conflict begins.
Case in point: Tarzan and Jane have two children, Tantor and Turk, and reside in Jungletown. They were divorced in September 2006, but have returned to Court three additional times since their original judgment. Jane is a sassy red-head and speaks her mind freely. Tarzan is reserved and becomes withdrawn, quiet, and short when confronted with conflict. Tarzan and Jane do not communicate well. Information is frequently transported by the children from one parent to the other. Exchanges routinely become heated and animated over items like forgotten backpacks to disputes over the exact time intended by their “afterschool” parenting time exchange. The oldest son Turk, age 14, has learned to manipulate well to get out of inconsistent house rules and essentially sets his own curfew and “extracurriculars.” Tantor, a hefty young 12 year old, has limited social skills and has become the target of bullying in the school. Tantor is becoming withdrawn and refusing to go to school. Both parents increasingly point fingers at the other in lieu of solving the escalating negative behaviors in the boys.
A New Tool.
Parent Coordination is a relatively new alternative dispute process utilized to assist high conflict families in implementing and clarifying their parenting plans. Ongoing unresolved conflict can be devastating to children. A primary goal of parent coordination is to reduce the parental conflict in the best interests of the children. Various forms of parent coordinators have been adopted throughout the United States and Canada as many jurisdictions look for ways to work more effectively with high conflict families. Because high conflict families demand a disproportionate amount of Court resources and the family’s financial reserves, a secondary goal of parent coordination is to reduce the litigation that stems from unresolved conflict.
Myth #1: “We had a parenting investigator already, isn’t that the same thing?”
No. A parenting investigator provides an opinion to the court with regard to the best interests of the children, so that the court can make a final determination with regard to parental rights. A parenting coordinator, on the other hand, is appointed in order to assist the parties in resolving disputes related to parenting time already set in an Order.
Take Tarzan and Jane, for example. One of the sticking points for the two of them is exchanges. What time is “after school”? Who is responsible for backpacks and homework? What to do when there is miscommunication? A parenting coordinator could help this situation by facilitating negotiations between the parties to promote settlement of the issue. However, if it becomes apparent that the dispute cannot be resolved by an agreement of the parties, the parenting coordinator must make a decision resolving the dispute.
Thus, the parenting investigator should first help Tarzan and Jane attempt to resolve the issue. This can be done through mediation techniques, education, or a variety of conflict resolution procedures. However, if parents are still unable to determine what “after school” means, the parenting coordinator has the ability to simply decide that “after school” means “once the school bell has sounded signaling the end of the school day for the child.”
Myth #2: “We did mediation; it didn’t work, so there isn’t a point in having a parenting coordinator.”
No. Although a parenting coordinator is a neutral party, ultimately they have the authority to make a decision as to the issue involved. A mediator, on the other hand, does not make decisions or even recommendations, but helps the parties coordinate an agreement. It is quite probable that one of the parties will not be satisfied with the decision made by the parenting coordinator.
Mediation has become the alternative dispute resolution process of choice in family cases, because it allows the parents to make decisions for themselves with the help of the trained mediator. In August 2009, North Dakota enacted Chapter 14-09.1 authorizing the Court to order mediation at parties’ expense in any proceeding involving an order, modification of an order, or enforcement of an order for the primary residential responsibility, support, or parenting time of a child in which the primary residential responsibility or parenting time issue is contested.
While Mediators are not supposed to give advice or make decisions or recommendations to the parties, mediation is especially helpful pre-decree in creating parenting plans, and in occasional problem-solving sessions after the parenting plan has been entered, when parents need help moving through an impasse in their decision-making. The goal of both mediation and parenting coordination is to help disputing parents implement their parenting plans.
However, major differences exist between the roles of mediator and parent coordinator. A mediator is selected by the parties without the necessity of a court order and with no term of service; a parent coordinator is appointed by court order and often with a specified term of appointment; Mediation is an issue-specific process—that is, when parties have a dispute, they enter into mediation. When they are finished, either with or without an agreement, their work with the mediator generally is concluded. Parenting coordination is an active, ongoing process with the family in which the parent coordinator may require regular meetings or periodic communication with the parents. Much of the work may be done on the phone or by e-mail.
When parents disagree about nearly every issue, are unable to co-parent effectively, and when mediation has failed, parenting coordination with decision-making can be effective in reducing the conflict.
To Our Fine Friends in the Black Robes, Please Take Note.
Myth #3: “If the parenting coordinator can make all of the decisions, we don’t need a judge.”
No. A parenting coordinator’s authority to issue an opinion is significantly limited.
A parenting coordinator may be appointed in any action for divorce, legal separation, paternity, or guardianship in which children are involved. The court, upon its own motion or by motion or agreement of the parties, may appoint a parenting coordinator to assist the parties in resolving issues or disputes related to parenting time.
As with many alternative dispute resolution matters, if domestic violence is present, a parenting coordinator may not be proper. However, the court still has the authority to appoint a parenting coordinator as long as appropriate measures are taken to ensure the physical and emotional safety of all parties and children.
So who pays for the parenting coordinator? That is ultimately up to he court as well, and is generally apportioned the same way as unreimbursed medical expenses. Currently, there is no funding available to supplement or cover the costs of a parenting coordinator.
However, there may be one party who “uses” the time of the parenting coordinator more than the other. In order to allow for this circumstance, the court has the authority to reapportion fees if necessary. After the fees are incurred, a party may by motion request that the fees be reapportioned on equitable grounds. The court may consider the resources of the parties, the nature of the dispute, and whether a party acted in bad faith. Notwithstanding the confidentiality provisions the court may consider information from the parenting coordinator in determining bad faith.
What if one or the other party cannot afford the service? The court may not require either party to use a parenting coordinator if they cannot afford the fees, unless the other party agrees to pay for the services.
When does this end?
If the parties agree that the parenting coordinator’s appointment is no longer necessary, the court may terminate the appointment. In other words, once the “problem” has been solved, or the parties agree that it is not serving a function, the parenting coordinator may be released. Additionally, the court can terminate the parenting coordinator for “good cause”. Good cause includes:
- Lack of reasonable progress over a significant period of time despite the best efforts of the parties and the parenting coordinator;
- A determination that the parties no longer need the assistance of a parenting coordinator;
- Impairment on the part of a party that significantly interferes with the party’s participation in the process; or
- The parenting coordinator is unwilling or unable to serve.
Not a Job for the Meek at Heart.
The parenting coordinator has five days from appointment or notice of a dispute between the parties to pull the parties together, inform them of the role of the parent coordinator, and make a diligent effort to facilitate an agreement or resolve the dispute. Not later than five days after receiving all information and exercising diligent efforts to confer with the parties, the parent coordinator is required to make a decision resolving the dispute. The decision must be reduced to writing and becomes binding on the parties until further order of the court. These decisions are expressly prohibited from substantively changing any Court order. Instead the parent coordinator is charged with the responsibilities to recommend strategies for implementation of the parenting plan, monitor that implementation, and assist the parties in developing communication and cooperation for the purpose of effective co-parenting of the children, including helping the parents find resources to develop effective communication skills.
While documentation of services provided and recording of agreements is another critical responsibility of the parent coordinator, notes, records, and recollections of parenting coordinators are confidential and may not be disclosed except under very limited circumstances.
Due to the litigious trait of many high conflict families, by statute, parent coordinators are provided immunity from civil suit for acts or omissions of ordinary negligence arising out of that individual’s duties and responsibilities. The North Dakota Supreme Court through the State Court Administrator’s Office has established stringent qualifications for this role and is the gate keeper for the state-wide roster of qualified individuals eligible for appointment under the new law. There are numerous qualifications to becoming a parenting coordinator. An individual needs to possess either an Associate Degree in an academic field related to child care, child development, or children’s services with two years of experience in family and children services; or a Bachelor’s Degree. The individual must also have completed at least 12 hours of specialized parenting coordinator training which includes developmental stages of children, the dynamics of high conflict, the stages and effects of divorce, problem-solving techniques, and the dynamics of domestic violence, its impact on children and lethality assessment; and have completed a minimum 40 hours of domestic relations mediation training. The individual may not have a criminal conviction for, or substantiated instance of child abuse or neglect, and shall not be or have been restrained by a domestic violence protection order or disorderly conduct restraining order entered after notice and hearing. In addition, the individual must also attend parent coordinator seminars which offer continued education, peer reviews, and support in the area of being a parent coordinator.
No ADR process totally reduces conflict between parents after a divorce or separation. Parenting coordination, though, when combined with decision-making, often can help high-conflict parents focus on the needs of their children, improve communication between the parents, and resolve disputes outside court.