Keep My Family Out of This: The Proposed New CJA Rule 4-509

The Supreme Court and the Judicial Council have proposed, among other things, amendments to the Code of Judicial Administration by creating a new rule, Rule 4-509, pertaining to Court-appointed parent coordinator. The comment period expires May 28, 2008.

In short, I urge everyone committed to the rule of law to oppose passage of proposed Rule 4-509 on the grounds that the practice of divorce and family law is being overrun by a regulatory policy that, at the pace it's on now, seems poised to challenge the U.S. Tax Code for sheer volume, complexity, redundancy, and rigidity.

But don't take my word for it (although if you wish, my comments are found in the column to the right of the text of proposed Rule 4-509); proposed Rule 4-509 speaks for itself (and it's rather loquacious at that):

Text of Proposed CJA Rule 4-509

My Comment

Applicability This rule applies in any case in which a parenting plan is required under Utah Code Section 30-3-10.8 and a parent coordinator is ordered by the court. Nothing in this rule limits, supersedes, or replaces court-ordered or mandatory 7 mediation. Statement of the Rule (1) Role of the parent coordinator. (1)(A) Upon court order, a parent coordinator may be appointed to serve in child custody and parent-time disputes. The parent coordinator’s role is to consult with the parties and make recommendations directly to the parents about how the children’s needs can best be served. The role of the parent coordinator is like that of the mediator in that the parent coordinator seeks to elicit cooperation and agreement between the parents. Using his or her expertise in child development, however, the parent coordinator also, after hearing the parents’ perceptions and thoughts, offers advice and guidance with regard to specific decisions. With the help of the parent coordinator, the parents then create, revise, or clarify their parenting plan, as defined in 30-3-10.7 (1). (1)(C) The role of the parent coordinator is not primarily investigative, although the parent coordinator may meet and/or interview the children briefly during the course of the consultation process. Suggestions will not be binding upon the parties, and will not be sent to the Court or others unless both parents agree to their dissemination and sign written releases to that effect. Involvement of a parent coordinator is best suited for parties who can respectfully exchange ideas and who can benefit from independent professional advice in areas where they disagree. If a viable parenting plan is established through work with the parent coordinator, the parents may stipulate to a custody and parent-time agreement, and thereby avoid active involvement of the court. (2) Term and condition of consultation. (2)(A) The order appointing the parent coordinator shall address: (2)(A)(i) the minimum number of visits, not to be less than 4 hours of face to face joint consultation, with the parent coordinator, unless the formal parenting plan is finalized sooner; (2)(A)(ii) responsibility for payment of the parent coordinator’s fees; and (2)(A)(iii) should specify any limitations on the role of the parent coordinator. (2)(B) Termination of the services shall not excuse either party’s responsibility for fees already incurred. (3) Content of consultation. The parent coordinator may consult with the parties on a wide variety of issues related to child custody/parent-time as well as other needs of the children. The focus will be the developmental and other needs of the children in the family. The goal will be to preserve relationships and protect the children from the disruption and conflict that can occur with divorce. Specific topics that may be covered include: (3)(A) methods of communication between the parents; (3)(B) responsibilities of each parent regarding decision-making and delivery of care; (3)(C) methods of resolving conflict or disagreement without child involvement; (3)(D) ways in which the parents can support the child’s relationship with the other parent; (3)(E) parental agreement and consistency regarding the parents’ expectations of the child and discipline techniques; (3)(F) dates and times of pick-up and delivery; (3)(G) parent-time during vacations and holidays; (3)(H) method of pick-up and delivery; (3)(I) transportation to and from each other’s home; (3)(J) selection of child care and baby-sitting; (3)(K) adherence to special diet, clothing, bedtime, and recreational requirements; (3)(L) child’s participation in recreational and other activities with each parent; (3)(M) notification of other parent when surrogate care is needed; (3)(N) selection of surrogate care; (3)(O) alterations in the parent time schedule; (3)(P) participation of relatives and friends during parent-time; (3)(Q) execution of daily routines; (3)(R) adherence to conditions for parent-time (e.g., supervision by a third party, drug monitoring, etc.); (3)(S) school attendance; (3)(T) selection of school; (3)(U) access to information about the child (e.g., from school, physician); (3)(V) step-parent issues; (3)(W) administration of medication; and (3)(X) any other issues as agreed upon by the parties. (4) Qualifications. To be eligible to serve as a parent coordinator, the individual must meet the same licensure requirements as a custody evaluator as noted in Rule 4-903(1) (4)(A) social workers who hold the designation of Licensed Clinical Social Worker or equivalent license by the state in which they practice may perform custody evaluations within the scope of their licensure; or (4)(B) doctoral level psychologists who are licensed by the state in which they practice may perform custody evaluations within the scope of their licensure; or (4)(C) physicians who are board certified in psychiatry and are licensed by the state in which they practice may perform custody evaluations within the scope of their licensure; or (4)(D) marriage and family therapists who hold the designation of Licensed Marriage and Family Therapist (Masters level minimum) or equivalent license by the state in which they practice may perform custody evaluations within the scope of their licensure; and must have the following minimum qualifications: (4)(E) formal training in child development; this training may have been received during one of the degree programs referred to above. (4)(F) at least 3-year post-licensure clinical practice substantially focused on child/marital/family therapy; and (4)(G) a working familiarity with child custody/parent-time law and the ethical issues involved in custody matters; and (4)(H) beginning in 2010, at least a total of 18 hours of continuing education during the previous 3 years and every 3 years thereafter; training hours should include all of the following areas: (4)(H)(i) conflict resolution theory and techniques, including (4)(H)(ii) mediation; (4)(H)(iii) child development and psychology, including (4)(H)(iv) adjustment to divorce; (4)(H)(v) domestic relations law; (4)(H)(vi) familiarity with the dynamics of domestic violence; and (4)(H)(vii) associated safety and intervention considerations; and (4)(I) in areas of the state where there is a shortage of services, a professional who meets the licensure requirements outlined above in (4)(A) – (4)(E) may act as a parent coordinator in up to 10 cases before being required to meet the remaining qualifications. (5) Impartiality. (5)(A) A parent coordinator shall maintain impartiality in the process of parenting coordination. Impartiality means freedom from favoritism or bias in word, action, or appearance, and includes a commitment to assist all parties, as opposed to any one individual. (5)(B) A parent coordinator shall withdraw if the parent coordinator determines he or she cannot act in an impartial or objective manner. (5)(C) A parent coordinator shall neither give nor accept a gift, favor, loan or other item of value from any party having an interest in the parenting coordination process. During the parenting coordination process, a parent coordinator shall not solicit or otherwise attempt to procure future professional services or positions from which the parent coordinator may profit. (5)(D) A parent coordinator shall not coerce or improperly influence any party to make a decision. (5)(E) A parent coordinator shall not intentionally or knowingly misrepresent or omit any material fact, law or circumstance in the parenting coordination process. (5)(F) A parent coordinator shall not accept any engagement, provide any service or perform any act outside the role of parent coordinator that would compromise the parent coordinator’s integrity or impartiality in the parenting coordination process. (6) Conflict of interest. (6)(A) A parent coordinator shall not serve in a matter that presents a clear conflict of interest. (6)(B) A conflict of interest arises when any relationship between the parent coordinator and the participants or the subject matter of the dispute compromises or appears to compromise a parent coordinator’s impartiality. (6)(C) A parent coordinator shall disclose potential conflicts of interest to the parties and counsel of record as soon as practical after a parent coordinator becomes aware of the interest or relationship giving rise to the potential conflict. (6)(D) After appropriate disclosures, the parent coordinator may serve with the written agreement of all parties and, if court ordered, the approval of the court. However, if a conflict of interest clearly impairs a parent coordinator’s impartiality, the parent coordinator shall withdraw regardless of the expressed agreement of the parties. (6)(E) During the parenting coordination process, a parent coordinator shall not create a conflict of interest by providing any services to interested parties that are not directly related to the parenting coordination process. (6)(F) A parent coordinator may make referrals to other professionals to work with the family, but shall avoid actual or apparent conflicts of interest by referrals. No commissions, rebates, or similar remuneration shall be given or received by a parent coordinator for parenting coordination or other professional referrals. (7) Dual roles. (7)(A) A parent coordinator shall not serve in dual sequential roles. (7)(B) A parent coordinator shall not serve in multiple roles in a case that creates a professional conflict. (7)(B)(i) A mediator or custody evaluator shall be cautious about becoming a parent coordinator in the same case, even with the consent of the parties, because of the differences in the role and potential impact of the role change. (7)(B)(ii) A parent coordinator shall not become a custody evaluator either during or after the term of a parent coordinator’s involvement with the family. (7)(B)(iii) A parent coordinator shall not be appointed after serving as a therapist or consultant or serve in another mental health role to any family member. (7)(B)(iv) A parent coordinator shall not become a therapist or consultant or serve in any other mental health role to any family member, either during or after the term of the parent coordinator’s involvement. (7)(C) In some contexts (rural communities) it may not be possible to avoid multiple relationships between the parent coordinator and the family involved in parent coordination, attorneys for the case or the judge involved in the proceedings. In these cases the parent coordinator shall disclose to relevant parties any relationships that might likely lead to impaired objectivity or decreased competence and effectiveness. The parent coordinator shall inform relevant parties of the potential negative consequences of such multiple relationships and seek to minimize these consequences by either withdrawing or limiting the tasks they agree to undertake. (8) Communications and confidentiality. (8)(A) All suggestions made to the parties should occur in joint sessions. (8)(B) Bearing in mind that the role of a parent coordinator is not primarily investigative, the parent coordinator may, nevertheless, communicate with the guardian ad litem attorney, if one is appointed, but shall only communicate with any third persons (including teachers, physicians, clergy, therapists or other extended family members) with the express written permission of both parties and only to the extent necessary to obtain information that the parties agree can be most reliably obtained in that fashion. The parent coordinator may meet and/or interview the children with the express written permission of the parents or the guardian ad litem attorney (if appointed) as part of the consultation process if the parent coordinator believes that such action will aid in issuing appropriate suggestions. (8)(C) Unless otherwise agreed by the parties, all oral or written communications between the parent coordinator and the parties, other than a formal parenting plan and the quarterly status report are deemed confidential and may not be released unless agreed to by both parties. (8)(D) Nothing in this rule excuses mandatory reporting requirements pursuant to Utah law, federal law, and/or other professional reporting requirements. (9) Agreements and enforcement. (9)(A) Any formal parenting plan agreed to by the parties and drafted by the parent coordinator shall be reduced to a written document and forwarded to the parties, their attorneys, and the guardian ad litem attorney (if one is appointed). (9)(B) Parent coordinators shall notify the court of the status of the parent coordinator process, on a form provided by the court, at three month intervals or earlier upon termination.

Parenting plans themselves are an ineffectual, burdensome requirement of § 30-3-10.8 (and the subject of a separate, soon-to-come blog posting). Moreover, § 30-3-10.8 was promulgated for the express, stated purpose of requiring divorcing parents to: (a) provide for the child's physical care; (b) maintain the child's emotional stability; (c) provide for the child's changing needs as the child grows and matures in a way that minimizes the need for future modifications to the parenting plan; (d) set forth the authority and responsibilities of each parent with respect to the child consistent with the definitions outlined in this chapter; (e) minimize the child's exposure to harmful parental conflict; (f) encourage the parents, where appropriate, to meet the responsibilities to their minor children through agreements in the parenting plan rather than relying on judicial intervention; and (g) protect the best interests of the child. (See § 30-3-10.9(1) (Parenting plan -- Objectives -- Required provisions -- Dispute resolution)). Evidently, § 30-3-10.8 and the parents who follow it aren’t doing the job, so Rule 4-509 adds a third party to the equation in the form a parent coordinator who is no better equipped than the court to govern parenting disputes and is subject to a ludicrously detailed, complex laundry list of additional strictures and requirements that we will address infra. Does anyone honestly (honestly) believe that the reason we have or have persistent child custody and parent-time disputes is because we lack for those who can or will “consult with the parties and make recommendations directly to the parents about how the children’s needs can best be served?” Come on. What problem does a rule like this solve? And why must every dispute be treated as something where if we just “seek to elicit cooperation and agreement between the parents” somehow the dispute will be resolved? Consider: many parent-time disputes arise because (and I realize this may be a radical concept) a parent is in the wrong. Sometimes that parent is innocently in the wrong, other times that parent is deliberately violating the decree and/or the laws governing child custody and parent-time disputes. Either way, wrong is wrong, and there is no need nor reason to treat this wrong-headedness as something to be negotiated over. Are you refusing to have the children back at the conclusion of parent-time at 7:00 p.m. on Sunday? Hey pal, this ain’t a dispute; you’re in the wrong, and the custodial parent need not “negotiate” or “mediate” or “dialogue” on this topic. You’re in contempt of court. Case closed. If we introduce proposed Rule 4-509 into the mix it gives bull-headed miscreants and their baseless “positions” merit, as it compels the aggrieved parent to work with the parent coordinator (after all, if you go straight to court with a plain vanilla motion for order to show cause, what good’s the parent coordinator?) or he/she risks being branded “uncooperative,” “close-minded” and “part of the problem, not part of the solution.” Proposed Rule 4-509 is an example of where the maxim “Don’t just do something, stand there” should be heeded. Some “disputes” are not disputes at all, but merely antagonism dressed up in sheep’s clothing by a clever, opportunistic parent acting in bad faith. Such “disputes” do not merit advice or guidance, or revision, or clarification of their parenting plan, but instead just need good old fashioned retribution and punishment. Such “disputes” are not best addressed by suggestions, solutions, compromises or settlements. Where a parent is just plain wrong, just plain poking his/her finger in the eye of the other parent, the court, and the law, no amount of insight, training, therapeutic skill or stimulation of appropriate parental communication is warranted or effective. Punishment, however, is; and if punishment is not meted when when called for, justice is denied. Again, I know it’s a radical concept, but punishment does work, and in some cases, it’s not only appropriate, but the only effective means of stopping the misconduct. Now this is rich: “Involvement of a parent coordinator is best suited for parties who can respectfully exchange ideas and who can benefit from independent professional advice in areas where they disagree.” Parents who can respectfully exchange ideas and who can benefit from independent professional advice in areas where they disagree don’t need a parent coordinator in the first place! Hey you attorneys out there, have you ever seen anyone recommend a parent coordinator when the parents actually try to get along and acknowledge that reasonable minds can disagree, yet still treat each other civilly and in a spirit of cooperation? Hell no! Parent coordinators are recommended when someone (whether sincerely or just to impose financial hardship or other burdens) claims that without a “referee” the parents will never stop arguing and fighting over parent-time and/or custody. Give me a break. Huh? How was the “minimum [that’s a loaded term, if ever there was one] number of visits [i.e., no less than 4 hours of face to face joint consultation] decided? Was that just a number that felt good? Where’s the justification for making parents meet for 4 hours with the parent coordinator, no matter what? With due respect, these kinds of rules lack any basis in science or even just plain good sense. Uh-oh. Did I read that right?: “as well as other needs of the children”? In the military, we call such language mission creep. How can proposed Rule 4-509 initially proclaim the “role of the parent coordinator” to be “to serve in child custody and parent-time disputes,” yet broaden the parent coordinator’s reach to include “other needs of the children”? What if the parents have no dispute between them, but the parent coordinator feels that little Johnny could benefit from the parents taking a Love & Logic course? What if, despite an order of joint custody, the parent coordinator feels that Dad’s the better parent? What if the parent coordinator feels that the kids need time to “explore their sexuality”? You get the idea. One word comes to mind when I read subpart 3 of proposed Rule 4-509: micromanagement. Remember when the public and legislature that serves it treated divorcing parents as though their divorce did not divest them of their intelligence, their reason, and maturity? Is it too hard to recall that there was a time when a divorce decree assumed that parents would, despite the dissolution of the marriage, continue to function reasonably well as parents? Apparently so, because now a parent coordinator is needed to consult and instruct parents on a 25-point list on basic parenting covering everything from “decision-making [sic] and delivery of care” to “dates and times and method of pick-up and delivery” to “parent-time during vacations and holidays [don’t we have a statute or two or three that already covers that?]” to “transportation to and from each other’s home” to “adherence to special diet, clothing, bedtime, and recreational requirements [Aaagghhh!]” to “school attendance.” School attendance? Is that even negotiable? Why must anyone who is considered minimally competent to advise parents be a professional? Why can’t a 68-year-old mother or father of a couple of kids who grew up without becoming felons qualify? They appear to have known something about good parenting too. No offense to psychologists and their ilk, but psychology is not a hard science. One day Dr. Spock is everybody’s hero, the next he’s history’s greatest child development monster. If child development were a skill we could teach like plumbing or carpentry, based upon timeless principles upon which there is little to no argument, then I’d say leave parent coordination to the psychologists, the LCSWs and the marriage and family therapists, but we’ve got to get over this notion that the only people who know about parenting are professionals who may not even be parents themselves. Fact: you don’t need “formal training in child development” to give sound advice about parenting. Fact: you need not be forced spend hundreds of dollars an hour to get sound parenting advice when needed. Fact: running to the professionals isn’t the answer to every problem. “a working familiarity with child custody/parent-time law and the ethical issues involved in custody matters”? There’s a specific definition. And who determines who meets this ambiguous standard? Let me be blunt(er): Referring people to professionals who have all this training and knowledge isn’t going to make a noticeable difference. People referred to mediation settle not solely because they discovered their BATNA (or whatever they’re calling it these days) but often because they got tired of jumping through all the damn dispute resolution hoops the judiciary is apparently hell-bent on throwing in front of them. Good grief. Did we really need to articulate that the parent coordinator needed to be impartial? And did we need 195 words to boot to get the point across? Did we really need to articulate that the parent coordinator needed to be free of conflicts of interest? And did we need 222 words to boot to get the point across? Why are we treating parents and lawyers and the child development professionals like amoral, unethical morons? Why? Why? Great; the parent coordinator can get a guardian ad litem in on the act. Don’t forget the special master while you’re at it. And who could forget to include teachers, physicians, clergy, therapists or other extended family members? And why stop there? Perhaps the disputes between two parents should be made part of a statewide ballot initiative too. Can’t we just leave the family to deal with its own problems? Aren’t we getting, with proposed Rule 4-509, a cure worse than the supposed disease?

If a shortage of rules is what caused parenting disputes or allowed them to persist, more rules would be a fitting, salutary response to the problem. More rules, however (particularly more rules such as proposed Rule 4-509), in their haste to stamp out disputes among divorced parents (and it's crazy to suppose anything will ever do that), simply exacerbate the problems. Rather than create more rules, the simplest, most expeditious way to deal with disputes in divorce is to clear the pathway to the judge or commisioner, so that he/she hears and decides he matter in a timely manner and/or to make parents who seemingly cannot resolve parenting disputes between them pay a premium to bring such matters before the judge, and then mercilessly punish those parents who engage in "disputes" out of malice or bad faith.

I welcome your comments.