Bower v. Bournay-Bower , 469 Mass. 690 ( 2014 )

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SJC-11478
WILLIAM J. BOWER vs. MICHELLE A. BOURNAY-BOWER.
Norfolk. May 8, 2014. - September 15, 2014.
Present: Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.
Divorce and Separation, Parent coordinator. Constitutional Law,
Judicial review, Delegation of powers. Due Process of Law,
Right to hearing, Delay in rendering decision.
Complaint for divorce filed in the Norfolk Division of the
Probate and Family Court Department on March 25, 2009.
A complaint for contempt, filed on October 13, 2011, was
heard by Christina L. Harms, J., and entry of judgment was
ordered by Jennifer M.R. Ulwick, J.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
Susan E. Stenger (Francine Gardikas with her) for Michelle
A. Bournay-Bower.
Lisa A. Ruggieri & Jocelyn A. Thomsen for William J. Bower.
Kirsten V. Mayer, Nicole P. Cate, Sara Perkins Jones, Susan
R. Elsen, & Julia E. Schlozman, for Massachusetts Law Reform
Institute & others, amici curiae, submitted a brief.
SPINA, J. This case raises an issue of first impression in
the Commonwealth regarding the authority of a judge in a divorce
2
or custody proceeding in the Probate and Family Court to
appoint, over the objection of one of the parties, a "parent
coordinator"1 to assist parents in resolving conflicts that arise
in implementing the custody and visitation provisions set forth
in a final judgment of divorce. Additionally, this case raises
the issue whether a judge may grant binding decision-making
authority to the parent coordinator, again without the consent
of both parties, to resolve conflicts that arise between the
parents regarding custody or visitation.2 We transferred this
case from the Appeals Court on our own motion, and we conclude
that the judge in this case exceeded the bounds of inherent
judicial authority in appointing, without all parties' approval,
a parent coordinator with binding decision-making authority. We
further conclude that the breadth of authority vested in the
1
The Association of Family and Conciliation Courts, an
international, interdisciplinary association of professionals
that has published guidelines for parent coordinator practice,
describes parent coordination as "a child-focused alternative
dispute resolution process in which a mental health or legal
professional with mediation training and experience assists high
conflict parents to implement their parenting plan by
facilitating the resolution of their disputes in a timely
manner, educating parents about children's needs, and with prior
approval of the parties [or] the court, making decisions within
the scope of the court order or appointment contract." The AFCC
Task Force on Parenting Coordination, Guidelines for Parenting
Coordination, 44 Fam. Ct. Rev. 164, 165 (2006).
2
We acknowledge the amicus brief submitted in this case by
the Massachusetts Law Reform Institute, Community Legal Services
and Counseling Center, Greater Boston Legal Services, Harvard
Legal Aid Bureau, Justice Center of Southeast Massachusetts,
MetroWest Legal Services, and The Second Step.
3
parent coordinator constitutes an unlawful delegation of
judicial authority. Accordingly, we vacate the order.3
1. Background. a. Facts. The parties in this case, whom
we shall call the mother and the father, are divorced parents of
four minor children. The initial complaint for divorce was
filed in March, 2009. After more than two years of litigation,
a judgment of divorce nisi entered on May 11, 2011. The
judgment provided for shared legal custody of the parties' four
children and incorporated and merged the parties' separation
agreement, which contained a detailed six-page parenting plan.
The judgment further set forth provisions for visitation with
the children during winter holidays and summer vacations as the
parties were unable to reach an agreement regarding visitation
during those time periods.
By the end of 2011, each of the parties had filed contempt
complaints alleging that the other had violated various terms of
the divorce judgment, including the obligation to adhere to the
parenting time schedule and the obligation to share decision-
making regarding major issues in the children's lives. The
father's complaint requested that the mother be adjudged in
3
We do recognize, however, the important role that parent
coordinators may serve in assisting divorcing or divorced
parents in resolving custody and visitation disputes outside of
court. Consequently, as discussed at the end of this opinion,
we refer this issue to the Probate and Family Court to consider
the adoption of a rule governing the appointment of parent
coordinators in appropriate proceedings.
4
contempt and that she be ordered to participate in parenting
coordination and to be bound by the decisions of the parent
coordinator.
At the hearing on the parties' complaints for contempt, the
judge declined to hear argument on the allegations contained in
the complaints for contempt and instead focused on the father's
request that a parent coordinator be appointed in this case.4
The mother objected to the appointment of a parent coordinator
and indicated that she preferred for the judge, who was familiar
with the case, to enforce the judgment and to resolve disputes
arising from the parties' implementation of the parenting plan.
Despite the mother's objections at the hearing, the judge
issued an order requiring the parties to utilize the services of
the parent coordinator identified in the order.5 In substance,
the order required the parent coordinator to hear all of the
4
At the hearing, the judge explained that she was focused
on the issue of the appointment of a parent coordinator because
she hoped to implement a process that could help to prevent the
sorts of disputes that had given rise to the complaints for
contempt in this case. As the judge stated at the hearing, "I
have to decide first how to get you out of this cycle where you
gather up a bunch of stuff, you come in like a volcano
overflowing, and all the bad stuff has actually already
happened, and I can't get a handle on how it happened. . . .
I'm [going to] try to get . . . a system in effect . . . that
maybe gets a little bit ahead of these problems and starts to
give some relief."
5
The order originally issued by the judge contained an
incomplete sentence, which was corrected in a subsequent
"clarified order." As the clarified order was issued later and
binds the parties, we refer to the clarified order as "the
order" at issue in this case.
5
parties' current and future disputes regarding custody and
visitation in the first instance, before the parties could file
any action regarding these disputes in court. The order also
granted the parent coordinator the authority to make binding
decisions on matters of custody and visitation and provided that
these decisions must be complied with by the parties as if they
were court orders unless one of the parties were to go to the
court before the decision was to take effect and obtain a
contrary order.6
After the retirement of the judge who issued this order,
another judge issued a decision on the parties' contempt
complaints, and in so doing, ordered the parties to adhere to
the order appointing the parent coordinator. After the decision
on the contempt complaints was entered as a judgment, the mother
appealed the order appointing the parent coordinator, and we
transferred this case on our own motion.
6
The order provided in full: "Effective immediately, a
Parent Coordinator shall serve to hear all disputes between the
parties regarding custody and visitation, in the first instance,
before such matters are brought before the court. The Parent
Coordinator shall have BINDING AUTHORITY to issue rulings
concerning disputes brought to her, and the parties must comply
with her decisions as if they were court orders, UNLESS either
party, dissatisfied, comes to court before the decision is to
take effect, and obtains a contrary order. The Parent
Coordinator shall be paid for her services by the father.
However, nothing herein precludes the Parent Coordinator from
making a different fee recommendation at any time, if she feels
that the conduct of the mother so warrants." (Emphases in
original.) The order further named a specific parent
coordinator with whom the parties were to engage.
6
The mother now argues that the judge lacked both express
and inherent authority to appoint a parent coordinator, that the
order here constituted an unlawful delegation of judicial
authority, and that where the mother did not consent to the use
of a parent coordinator, the order infringed on her due process
right of access to the courts.7 Although we recognize, as did
the judge in this case, that parent coordinators may provide
valuable assistance to parents in implementing custody and
visitation plans, we conclude that the order at issue here
exceeded the bounds of the judge's inherent authority and was so
broad in scope that it constitutes an unlawful delegation of
judicial authority. Accordingly, we vacate the order appointing
the parent coordinator and so much of the subsequent judgment as
required the parties to comply with the order.
b. Role of a parent coordinator. Generally, parent
coordinators, whose backgrounds may be in mental health, family
law, or other relevant fields, are understood to serve as
neutral third parties who assist separated or divorced parents
in resolving conflicts that arise in the implementation of
custody and visitation arrangements in a manner that reduces the
impact of the parents' conflict on their children. C.P.
Kindregan, Jr., M. McBrien, & P.A. Kindregan, Family Law and
7
In the Probate and Family Court, the mother also sought a
stay of the order appointing the parent coordinator while this
appeal was pending, which was granted.
7
Practice § 37:3 (4th ed. 2013). The specific nature of the role
of a parent coordinator varies significantly both within and
among jurisdictions that permit such appointments. See, e.g.,
Fla. Stat. § 61.125 (2009); N.D. Cent. Code § 14-09.2-01 (2009);
Or. Rev. Stat. § 107.425 (2008). In certain circumstances, the
role of parent coordinator may be analogous to that of a
mediator, in others to that of a master, and still in others,
the parent coordinator's role combines multiple functions. See,
e.g., Minn. Stat. § 518.1751(1b)(c) (2001) (parent coordinator
authorized to use "mediation-arbitration process" in which
parent coordinator facilitates dispute resolution in first
instance but is permitted to issue decision resolving dispute
where parents cannot agree); Ariz. R. Fam. Law P. 74(E), (F)
(2011) (parent coordinator is authorized to interview family and
household members, health care providers, and school officials
and to make recommendations to court regarding implementation or
modification of custody and parenting time orders, or to
recommend that parties or children participate in ancillary
services such as counselling or substance abuse monitoring);
Utah Jud. Admin. R. 4-509 (2009) (parent coordinator's role is
"like that of the mediator," and authority is limited to making
recommendations directly to parties and facilitating parents'
creation or revision of parenting plan). In some jurisdictions,
the parent coordinator's role is to provide a hybrid of a
8
mediation and arbitration services in which the parent
coordinator seeks to facilitate dispute resolution between the
parties in the first instance, but if the dispute is
intractable, the parent coordinator is permitted to issue a
binding decision resolving the conflict. See, e.g., Fla. Stat.
§ 61.125(1); Minn. Stat. § 518.1751 (1b)(c) (2001); N.C. Gen.
Stat. § 50-92(b) (2005); Okla. Stat. Ann. tit. 43, § 120.2 (West
2003); Idaho R. Fam. Law P. 716(G)(1)(e) (2014). In other
jurisdictions, a parent coordinator may provide alternative
dispute resolution services and serve certain quasi judicial
functions such as gathering facts or making recommendations to
the court. See, e.g., La. Rev. Stat. Ann. § 9:358.4(C) (2007);
Or. Rev. Stat. § 107.425(3)(a)(A), (C); S.D. Codified Laws § 25-
4-70(5) (2013); Ariz. R. Fam. Law P. 74(E), (F).
Over the past several years, the use of parent coordinators
to assist parents in developing and implementing custody and
visitation arrangements has become increasingly common across
the country as well as in Massachusetts. See Jordan v. Jordan,
14 A.3d 1136, 1153 (D.C. 2011) (referencing thirty jurisdictions
in twenty-seven States that permit appointment of parent
coordinators by statute or court rule). See also Katzman v.
Healy, 77 Mass. App. Ct. 589, 594 n.6 (2010) (discerning no
error in order requiring parents to implement provision of
separation agreement calling for use of parent coordinator);
9
Tammaro v. O'Brien, 76 Mass. App. Ct. 254, 255 n.3 (2010)
(referencing provisions in separation agreement merged into
final judgment of divorce that required parents to use parent
coordinator); R.S. v. M.P., 72 Mass. App. Ct. 798, 802 n.8
(2008) (referencing appointment of parent coordinator in case
while complaint for modification was pending). Indeed, judges
in our courts have acknowledged the potential benefits provided
by parent coordinators, particularly in more contentious cases.
See, e.g., R.S., supra (describing probate court judge's
rationale in appointing parent coordinator as providing parties
with "convenient, expeditious and economical forum to help them
to resolve decision making regarding their children").
Despite the increasing use of parent coordinators in
Massachusetts, the specific functions of a parent coordinator,
including the parent coordinator's duties, necessary
qualifications, or scope of authority, have not been set forth
by statute or court rule. See, e.g., 2007 Senate Doc. No. 895,
"An Act relative to the appointment of parenting coordinators in
the probate courts" (never enacted by the Legislature).
Massachusetts statutes and court rules recognize various types
of alternative dispute resolution practices and define the roles
of quasi judicial officers including guardians ad litem and
masters who may investigate facts and make reports to the court.
However, no statute or court rule specifically recognizes either
10
the role of a parent coordinator or the service of parent
coordination.
For example, S.J.C. Rule 1:18, as amended, 442 Mass. 1301(2004) (Uniform Rules on Dispute Resolution), sets forth a
comprehensive scheme of rules governing court-connected
alternative dispute resolution services. The rules address in
detail the administrative structure for court-connected dispute
resolution services, the implementation of court-connected
dispute resolution, the respective duties of the courts and
approved dispute resolution programs with respect to court-
connected dispute resolution services, and the qualifications
and ethical standards for providers. The rules recognize
"[d]ispute resolution service[s]" that include, but are not
limited to, "arbitration," "case evaluation," "conciliation,"
"mediation," "mini-trial," and "summary jury trial." Uniform
Rule 2. Rule 2 also separately defines "[d]ispute
intervention," which is a process used in the Probate and Family
Court and in the Housing Court in which a neutral identifies the
areas of dispute between the parties and assists in the
resolution of differences.
Under the rules, parties may not be compelled to
participate in dispute resolution services except that the
Probate and Family Court may require parties to participate in
dispute intervention. Uniform Rule 6 (d). However, any trial
11
court department may seek authorization from the Chief Justice
of the Trial Court to implement a mandatory dispute resolution
program in civil cases. Uniform Rule 4 (c). Such mandatory
programs must meet certain minimum requirements, including that
each party must be permitted to petition the court to terminate
dispute resolution services for good cause shown; that the court
shall give preference to a dispute resolution process upon which
the parties agree; that the court must explicitly inform parties
that they are not required to settle their case or resolve their
dispute in the dispute resolution process; and that no fees may
be charged to any party that is required to participate in
dispute resolution. Uniform Rule 4 (c) (i)-(iv).
Similarly, G. L. c. 215, § 56A, authorizes the appointment
of a guardian ad litem in any proceeding pending in probate
court. The guardian ad litem is required to investigate facts
involving the care, custody, and maintenance of minor children
and to report the results of the investigation to the judge in
writing before issuance of a final judgment or decree in the
proceeding. See Probate and Family Court Standing Orders 1-05,
1-08 (2008) (establishing comprehensive standards governing
duties, methodologies, and qualifications of guardians ad litem
who act as custody, visitation, or adoption investigators or
evaluators). Further, Mass. R. Civ. P. 53 (b) (1), as appearing
in 423 Mass. 1408 (1996), permits a court in which a civil
12
action is pending to appoint a master, subject to the assent of
the parties, to hear evidence and report facts to the judge.
Rule 53 further sets forth rules governing a master's
qualifications, compensation, powers, and responsibilities. See
Mass. R. Civ. P. 53 (b) (1), (c), (e), (g), (h).
Although a parent coordinator may be qualified to provide
many of the services contemplated by S.J.C. Rule 1:18, or G. L.
c. 215, § 56A, or Mass. R. Civ. P. 53, the father does not argue
that the authority to appoint the parent coordinator is implicit
in an existing statute or court rule, nor did the judge appear
to derive her authority to appoint the parent coordinator from
an existing statute or court rule.8 Consequently, despite
8
Even if the father had argued that the appointment here
was authorized by a statute or rule governing court-connected
alternative dispute resolution or the appointment of masters or
guardians ad litem, the terms of the appointment here did not
conform to any of these rule schemes. For example, the
appointment here was made over the objection of the mother, but
there is no indication in the record that a pilot program for
mandatory dispute resolution was in place at the time as
required by S.J.C. Rule 1:18, as amended, 442 Mass. 1301 (2004)
(Uniform Rules on Dispute Resolution). See Uniform Rule 4 (c)
(requiring trial court departments to obtain approval from Chief
Justice of the Trial Court prior to implementing programs
requiring parties to participate in dispute resolution without
their consent). Further, the services of the parent coordinator
were not free, and the parent coordinator was authorized to
issue decisions with the binding effect of court orders.
Compare Uniform Rule 4 (c) (iii), (iv) (outcome of mandatory
dispute resolution services may not be binding on parties, and
services must be provided free of charge). Additionally,
although the record here indicates that the judge selected the
particular parent coordinator because of her knowledge of the
parent coordinator's exceptional qualifications, there is no
indication in the record that the judge selected the parent
13
existing rules governing alternative dispute resolution and the
appointment of quasi judicial officers, either of which may have
provided a basis for the judge's authority to appoint a parent
coordinator if the parent coordinator's role had been limited in
scope and analogous to the services contemplated by these rules,
we must consider the parties' arguments regarding inherent
judicial authority as the source of the judge's authority to
issue the order in this case.
2. Judge's inherent authority to appoint a parent
coordinator. The mother argues that without express
authorization by statute or court rule, and without agreement of
the parties, the judge was without authority to appoint a parent
coordinator in this case. The father argues that the use of
parent coordinators in Massachusetts has become increasingly
common, and that in the absence of a statutory prohibition, it
coordinator from a list maintained by the Probate and Family
Court as contemplated by Uniform Rule 4 (a), requiring
maintenance of an appointment docket for fee-generating
appointments in all courts. Further, the parent coordinator in
this case was not ordered to act in a role akin to that of a
quasi judicial officer investigating or finding facts or
reporting them to the court. Rather, the parent coordinator was
authorized to issue binding decisions on the merits of the
parties' present and future disputes regarding custody or
visitation, a role that exceeds the scope of authority of either
a master or a guardian ad litem. See Mass. R. Civ. P. 53 (a)
(i) (masters hear evidence in any action and report facts to
court); Probate and Family Court Standing Orders 1-05, 1-08
(2008) (guardian ad litem investigators gather and report
factual data to court and guardian ad litem evaluators gather
and report data and offer clinical opinions when competent to do
so).
14
was a permissible exercise of the judge's discretion to appoint
a parent coordinator. See Matter of Moe, 385 Mass. 555, 561
(1982) (recognizing broad, equitable power of probate court to
act in best interests of persons in its jurisdiction). We
conclude that judges in the Probate and Family Court possess the
inherent authority to appoint parent coordinators in appropriate
circumstances but that the appointment in this case exceeded the
bounds of that authority.
We have long recognized that courts in this Commonwealth
possess certain inherent powers whose exercise is "essential to
the function of the judicial department, to the maintenance of
its authority, or to its capacity to decide cases." Sheriff of
Middlesex County v. Commissioner of Correction, 383 Mass. 631,
636 (1981), citing Opinion of the Justices, 279 Mass. 607, 613
(1932). See Blankenburg v. Commonwealth, 260 Mass. 369, 372-373
(1927). These powers are necessary to "secure the full and
effective administration of justice" and thus extend beyond
adjudication to ancillary functions such as rule-making and
judicial administration. O'Coin's, Inc. v. Treasurer of the
County of Worcester, 362 Mass. 507, 510, 514 (1972).
Moreover, by statute, divisions of the Probate and Family
Court Department are courts of "superior and general
jurisdiction with reference to all cases and matters within
which they have jurisdiction." G. L. c. 215, § 2.
15
Specifically, the Legislature has granted probate courts
jurisdiction over, among other areas, the appointment of
guardians and conservators, along with exclusive original
jurisdiction over actions for divorce and actions related to the
care, custody, education, and maintenance of minor children.
G. L. c. 215, §§ 2, 3, 4. This jurisdiction extends to
equitable powers. G. L. c. 215, § 6. Thus, we have recognized
that a probate court possesses broad and flexible inherent
powers essential to the court's duty to act in the best
interests of persons under its jurisdiction. See Matter of Moe,
385 Mass. at 563. For example, we have recognized the inherent
authority of a probate court to appoint a guardian ad litem in
order to protect the interests of a person in a proceeding
before it or to ensure the proper functioning of the court. See
Superintendent of Belchertown State Sch. v. Saikewicz, 373 Mass.
728, 755 (1977), citing Lynde v. Vose, 326 Mass. 621 (1951), and
Buckingham v. Alden, 315 Mass. 383 (1944). Further, we have
recognized the inherent authority of a probate court to rule on
a petition by a guardian seeking court authorization to permit
an extraordinary medical procedure to be undertaken on behalf of
a ward. See Matter of Moe, supra at 556, 562.
Indeed, referral of appropriate cases to parent
coordination or other alternative dispute resolution services
may help to expedite the disposition of those cases and provide
16
a more satisfying and timely resolution of certain custody- and
visitation-related disputes for the parties. One recognized
feature of parent coordination services is that parent
coordinators can help to resolve disputes about "day-to-day"
custody and visitation issues. See Sullivan, Parenting
Coordination: Coming of Age?, 51 Fam. Ct. Rev. 56, 56 (2013).
See also The AFCC Task Force on Parenting Coordination,
Guidelines for Parenting Coordination, 44 Fam. Ct. Rev. 164, 172
(2006). Such disputes could arise from determining how to
adjust visitation if school is unexpectedly canceled, which
family members will attend a special event such as an award
ceremony or athletic competition, whether both parents may
attend a parent-teacher conference, or how accommodations will
be made if a parent or child becomes ill. In light of the
number of cases filed daily in the Probate and Family Court, a
parent coordinator may be available to assist the parties in
resolving such a dispute sooner than a hearing before a probate
court judge becomes available -- and perhaps before the dispute
at issue gives rise to a complaint for contempt or other formal
proceeding.
Therefore, probate court judges possess the inherent
authority to refer parties to a parent coordinator in
appropriate circumstances in order to conserve limited judicial
resources and aid in the probate court's functioning and
17
capacity to decide cases, or if in the judge's discretion such
referral is necessary to ensure the best interests of the
children in a divorce- or custody-related proceeding. See State
Realty Co. of Boston v. MacNeil Bros., 358 Mass. 374, 379
(1970), quoting Link v. Wabash R.R., 370 U.S. 626, 630-631
(1962) (courts possess inherent power to "manage their own
affairs so as to achieve the orderly and expeditious disposition
of cases"); Bahceli v. Bahceli, 10 Mass. App. Ct. 446, 449
(1980) (in custody proceeding, "[t]he overriding concern of the
court must be the best interest of the child"). However, this
authority is not without limit.
The inherent powers of the courts of the Commonwealth,
including the Probate and Family Court, operate within certain
boundaries. For example, we held that a Juvenile Court judge
does not possess the inherent authority to order parents to open
their home to investigators from the Department of Social
Services seeking a nonemergency home visit following an
anonymous report of child abuse because the power to issue such
an order was not in aid of the court's ability to function as a
court. See Parents of Two Minors v. Bristol Div. of the
Juvenile Court Dep't, 397 Mass. 846, 851-853 & n.3 (1986)
(contrasting G. L. c. 119, § 22 [1984], which authorized
Juvenile Court judges to issue warrants permitting agents of
Department of Social Services to enter foster homes to
18
investigate treatment and condition of children therein).
Further, we have held that a probate court does not possess the
inherent authority to levy an obligor's property in order to
recover child support arrearages where the authority to collect
such arrearages was delegated by statute to the Department of
Revenue and the recovery of unpaid support by the probate court,
as compared to the authority to order prospective support
payments, was not essential to the court's functioning,
authority, or capacity to decide cases. See Gray v.
Commissioner of Revenue, 422 Mass. 666, 672-673 (1996)
(interpreting G. L. c. 209C, § 9 [a], and G. L. c. 119A, § 6
[a], [b] [1]).
Moreover, we have stated that inherent judicial powers
arise from the individual right to the "impartial interpretation
of laws, and administration of justice" guaranteed by art. 29 of
the Massachusetts Declaration of Rights along with the right to
seek recourse under the laws and to obtain justice freely,
completely, promptly, and conformably to the laws, as provided
by art. 11.9 See First Justice of the Bristol Div. of the
Juvenile Court Dep't v. Clerk-Magistrate of the Bristol Div. of
9
Article 11 of the Massachusetts Declaration of Rights
states in full: "Every subject of the commonwealth ought to
find a certain remedy, by having recourse to the laws, for all
injuries or wrongs which he may receive in his person, property,
or character. He ought to obtain right and justice freely, and
without being obliged to purchase it; completely, and without
any denial; promptly, and without delay; conformably to the
laws."
19
the Juvenile Court Dep't, 438 Mass. 387, 396-397 (2003) ("It is
from these lofty principles that flows the concept of inherent
judicial powers . . ."). Therefore, we have held that judges
must exercise their inherent powers to secure the full and
effective administration of justice. Querubin v. Commonwealth,
440 Mass. 108, 114-115 (2003). O'Coin's, Inc., 362 Mass. at
514.
What follows, then, is that inherent judicial powers should
not be exercised in a manner that undermines the very
constitutional rights from which those powers arise. Here, the
nature of the authority granted to the parent coordinator in the
order of appointment, combined with the procedural requirements
in the order, including the limits on the parents' right to file
an action in court, and the limits on judicial review of the
parent coordinator's decisions, raise significant due process
concerns, implicating, among other rights, those guaranteed by
art. 11 of the Massachusetts Declaration of Rights. Therefore,
these due process concerns assist us in identifying the outer
limits of a judge's inherent authority to refer parties to a
parent coordinator.
a. Binding authority of parent coordinator. A judge's
inherent authority does not extend to compelling a party to
submit to the binding decision-making authority of a parent
coordinator without that party's consent. Among other
20
protections, art. 11 of the Massachusetts Declaration of Rights
safeguards an individual's right to seek recourse under the law
for all injuries or wrongs to persons, property, or character.
The order here infringed upon this right because it required the
mother, without her consent, to submit all disputes to a parent
coordinator, rather than to a judge, for binding resolution.
This sort of binding decision-making authority is a power
commonly held by an arbitrator. See, e.g., Uniform Rule 2
("'Arbitration' means a process in which a neutral renders a
binding or non-binding decision after hearing arguments and
reviewing evidence"). We held in Gustin v. Gustin, 420 Mass.
854, 857-858 (1995), that a judge may not compel parties to
submit to binding arbitration without their consent. Further,
although our rules governing the implementation of court-
connected dispute resolution services contemplate pilot programs
for mandatory participation in alternative dispute resolution,
such programs may extend only to nonbinding dispute resolution
services. See Uniform Rule 4 (c). A court in at least one
other State has held that granting a parent coordinator binding
decision-making authority without the consent of the parties
violates the parents' due process rights.10 See Kilpatrick v.
Kilpatrick, 198 P.3d 406, 410 (Okla. Civ. App. 2008).
10
We also observe that the order does not set forth, nor
does the record indicate, whether any provision was made for
representation by counsel in appearances before a parent
21
b. Deferral of decision on pending contempt complaint.
Moreover, the order infringed on the mother's right to have the
merits of her pending contempt complaint screened by a judge
early in the proceedings before referral to a parent
coordinator. Indeed, the judge issued the order in this case
during the parties' hearing on their cross complaints for
contempt without hearing the parties on the merits of their
claims or issuing a ruling on those complaints. The order
appointing the parent coordinator therefore served to defer the
judge's decision on the mother's claims regarding disputed
actions that had already taken place that may have constituted a
violation of the final divorce judgment. To defer this decision
over the mother's objection effectively infringed upon her right
to seek recourse under the law for the father's alleged failure
to adhere to the terms of the judgment.11
coordinator or whether any other standards were imposed by the
court governing the procedures a parent coordinator must follow
prior to issuing a binding decision which could affect the
parents' fundamental rights in the custody and visitation
context. Consequently, the absence of both parents' consent to
the appointment raises significant procedural due process
concerns as well.
11
A judge's inherent authority likely extends to a
recommendation to the parties to use the services of a parent
coordinator prior to a scheduled contempt hearing, perhaps with
the hope that the parties will resolve the conflict that gave
rise to the contempt complaint and withdraw the complaint or
present a resolution to the judge at the hearing. However,
deferring a party's right to be heard on a contempt complaint
during the contempt hearing approaches an infringement of the
parties' right to seek recourse under the law. Similarly, if
22
c. Prior restraint on future litigation. Additionally,
the order here functionally placed a prior restraint on the
parents' ability to file any future claim related to custody or
visitation in court. Indeed, the order expressly required the
parties to submit all disputes regarding custody or visitation
to the parent coordinator "before such matters are brought
before the court." This provision is unlike programs which may
permit referral of a case to mediation or other alternative
dispute resolution once the claims are reviewed by a judge and
determined to be appropriate for such referral. G. L. c. 211B,
§ 19 (authorizing mandatory, nonbinding dispute resolution pilot
program which requires screening and referral after action
filed). The order here denies the parents the right even to
obtain access to the court regarding future disputes or other
issues without first engaging with the parent coordinator. This
prior restraint on the ability to file future claims without
both parents' consent may also infringe upon the parties' right
to seek "recourse to the laws."12 Art. 11. In an analogous
the parties were before a judge in another type of proceeding in
which immediate judicial action were necessary, for example, to
enjoin an ongoing violation of a divorce judgment or temporary
visitation plan, a judge should not defer the decision and refer
the parties to a parent coordinator.
12
Further, although the father in this case consented to
pay for the services of the parent coordinator, requiring
parties to use the services of a parent coordinator prior to
filing any future actions related to custody and visitation
could amount to conditioning the right of access to the courts
23
context, one State court held that a judge's bar on future
postjudgment filings by parties to a divorce proceeding, absent
demonstrated, good-faith participation in a "four-way settlement
conference," constituted an impermissible burden on the parties'
due process right of access to the courts.13 Parish v. Parish,
988 A.2d 1180, 1182, 1190 (N.J. Super. Ct. App. Div. 2010).
on the use of a costly service. Although the record before us
does not reflect the fees charged by the parent coordinator
appointed in this case, the amici state that parent coordinators
may charge several hundred dollars per hour. See, e.g., Segal
v. Lynch, 211 N.J. 230, 236 (2012) (parent coordinator's
proposed retainer agreement provided for initial joint retainer
of $5,000 against which fee of $325 per hour would be billed);
Raviv v. Raviv, 64 A.D.3d 638, 638 (N.Y. 2009) (parent
coordinator fee called for $2,500 retainer and $250 per hour
after retainer). Parent coordinator fees in Massachusetts are
not regulated by statute or court rule. Such a precondition on
filing a claim implicates the right to access justice "without
being obliged to purchase it" under art. 11, and the
precondition offends Federal due process values where it could
operate to foreclose a party's opportunity to access the court
as a result of the party's inability to pay. See Boddie v.
Connecticut, 401 U.S. 371, 380-382 (1971).
13
We also observe that a prior restraint on litigation is
especially concerning in cases that may involve domestic
violence. Although not at issue in this case, requiring a party
who is or has been a victim of domestic violence at the hands of
the other party to submit to binding alternative dispute
resolution with a parent coordinator as a prerequisite to filing
a claim in court could result in requiring a party effectively
to choose between safety and access to the courts. See 2007
Senate Doc. No. 895 (proposed parent coordinator legislation, if
enacted, would have permitted court to terminate parent
coordinator's appointment upon showing of past or present
domestic violence that put victimized parent or child at risk of
physical or emotional harm). In related contexts, the Probate
and Family Court has recognized that cases involving domestic
violence should be exempt from certain procedures requiring the
parties to meet outside of court. See, e.g., Probate and Family
Court Standing Order 1-06(4)(a) (2006) (in cases where domestic
24
d. Impediments to judicial review. Finally, the form of
judicial review of the parent coordinator's decisions in the
order at issue in this case is insufficient to cure the
limitations on access to the courts created by compelling a
parent to submit to binding dispute resolution. Particularly in
a case where one parent did not consent to this arrangement, it
is not clear that merely providing for review of a parent
coordinator's binding decision upon motion by a party is
adequate to safeguard the parties' constitutional right of
access to the court. Indeed, even where both parties consent to
participate in arbitration, the arbitrator's award is generally
made binding by court order. See Glenn Acres, Inc. v. Cliffwood
Corp., 353 Mass. 150, 156 (1967) (statutory scheme governing
commercial arbitration contemplates that finality of
arbitrator's award is "subject to and dependent upon the entry
of a judgment or decree by the court").
Further, by the express terms of the order, judicial review
of a parent coordinator's binding decision may be entirely
unavailable in many circumstances. Specifically, the order
provides in relevant part that decisions of the parent
coordinator are binding as if court orders "unless either party,
violence restraining order has been issued, parties not expected
to confer out of court for purposes of agreeing on proposed
schedule for trial); Probate and Family Court Standing Order 1-
10(B) (2010) (in cases where domestic violence restraining order
has been issued, parties exempted from "introductory meeting"
requirement).
25
if dissatisfied, comes to court before the decision is to take
effect, and obtains a contrary order." Thus, the temporal
restrictions on the face of the order make clear that meaningful
judicial review may be unavailable for any decision of the
parent coordinator that will take effect before the party can
obtain review by a judge. Indeed, parent coordination services
may be particularly beneficial to families in which disputes
arise that require resolution sooner than a court may be
available to hear a claim. See Sullivan, Parenting
Coordination: Coming of Age?, 51 Fam. Ct. Rev. 56, 56 (2013).
See also The AFCC Task Force on Parenting Coordination,
Guidelines for Parenting Coordination, 44 Fam. Ct. Rev. 164, 172
(2006). Although expediency may be a beneficial feature of
parent coordination services, the nature of these disputes also
diminishes the practical availability of judicial review of a
parent coordinator's decisions. Indeed, conflicts over day-to-
day issues could arise and be decided by a parent coordinator
within days of the event but without sufficient time to appeal
the decision to the court before the appeal of the parent
coordinator's decision is effectively moot. Even disputes that
arise within a few weeks or months of the event in issue must
first be decided by the parent coordinator, which could leave
little time between the issuance of the parent coordinator's
decision and the disputed event. Thus, by the plain wording of
26
this order, judicial review of some, if not many, of the parent
coordinator's decisions could be completely unavailable.
Consequently, a judge in the Probate and Family Court
possesses the inherent authority to refer parties to a parent
coordinator. However, the appointment in this case exceeded the
bounds of that authority by granting the parent coordinator
binding decision-making authority without the consent of a
party, deferring the decision on the parties' pending contempt
complaints during the hearing on those complaints, placing a
prior restraint on future claims also without the parties'
consent, and potentially impeding judicial review of the parent
coordinator's binding decisions.
If the parties had consented to the appointment, or if the
parent coordinator's authority had been limited to assisting the
parties in resolving their disputes by issuing recommendations
to the parties, the referral to the parent coordinator may have
been permissible as a way to further the court's capacity to
decide cases by encouraging resolution of the parties' disputes
by the parties themselves. Similarly, if the referral had not
been made in lieu of a hearing and ruling on the parties'
contempt complaints, but had been ordered while the parties were
waiting for a scheduled hearing on the contempt, or as a way to
expedite the negotiation of a settlement agreement or visitation
plan while a divorce proceeding or complaint for modification
27
were pending, such an order may have been justified by the
court's inherent authority. However, in this case, the order,
both in the nature of the authority granted to the parent
coordinator and at the point in the proceedings in which it was
issued, undermined the parties' right of access to the courts
and therefore exceeded the scope of the judge's authority.
Moreover, even if the order had arisen from a valid exercise of
the judge's inherent authority, the scope of authority granted
to the parent coordinator in this case constituted an unlawful
delegation of judicial decision-making authority and must be
vacated on that ground.
3. Judge's delegation of authority to the parent
coordinator. The order appointing the parent coordinator in
this case provided that the parent coordinator "shall serve to
hear all disputes between the parties regarding custody and
visitation." The mother argues that the scope of this order is
so broad that it constitutes an unlawful delegation of judicial
authority because nothing in this order prevents the parent
coordinator from making structural changes to the custody
arrangement without regard to the statutory standards which
govern modification of final divorce judgments and because the
judge abdicated her statutory authority to decide whether
modifications to the custody arrangement are warranted. We
agree.
28
By statute, if a party seeks a modification of a final
judgment of divorce, a judge may make a judgment modifying his
or her earlier judgment provided the judge finds that "a
material and substantial change in the circumstances of the
parties has occurred and the judgment of modification is
necessary in the best interests of the children." G. L. c. 208,
§ 28. No such standard governs the parent coordinator in the
order at issue in this case. Indeed, if a dispute were to arise
between the parents regarding the fundamental terms of the
custody arrangement set forth in the final judgment of divorce,
nothing in this order would prevent the parent coordinator from
issuing a binding decision altering those fundamental terms
without considering either a material change in the
circumstances or the best interests of the children.14 Thus, the
order is unlawful because it empowers the parent coordinator to
make alterations to the parties' custody and visitation
arrangements without regard to statutory criteria governing such
changes. See G. L. c. 208, § 28.
14
The father argues that the order does not exceed the
scope of the judge's authority because neither the judge nor the
father intended for the parent coordinator to be permitted to
make significant, structural changes to the parties' custody and
visitation plan. However, the plain language of the order
conveys no such limitation. For example, if a dispute were to
arise between the parents regarding winter visitation, such a
dispute would appear to fall within the ambit of the authority
granted to the parent coordinator to resolve, yet it could also
involve a fundamental change to the parenting schedule set forth
in the final judgment of divorce.
29
Moreover, even if the order had required the parent
coordinator to apply the same statutory standard that governs a
judge in ruling on a complaint for modification, the statute
authorizes, and indeed obligates, the judge to issue the final
decision on any modification to the family's custody
arrangement. See Gustin, 420 Mass. at 857-858 (statute granting
probate judge discretion to make fair and equitable division of
property upon divorce grants judge "authority" and "obligation"
to make determination); Heistand v. Heistand, 384 Mass. 20, 26
(1981) (in complaint for modification of divorce judgment,
determination of "extent and palpability" of changed
circumstances lies in discretion of trial judge). In similar
cases we have held that a judge cannot shift the final decision-
making authority granted by statute to a third party. See
Silverman v. Spiro, 438 Mass. 725, 736-737 (2003) (judge could
not grant therapist "sole authority" to determine when parent-
child visitation would be appropriate where statute obligated
judge to make specific findings on issue of visitation);
Worcester County Trust Co. v. Marble, 316 Mass. 294, 301 (1944)
(judge could not delegate to trustee authority to determine what
constitutes "reasonable" legal fees where statute requires judge
to make that determination). See also P.W. v. M.S., 67 Mass.
App. Ct. 779, 785-786 (2006) (judge cannot delegate wholesale to
guardian ad litem statutory duty to conduct in camera review of
30
documents over which privilege asserted). Consequently, the
scope of the authority granted to the parent coordinator in this
case renders the order an unlawful delegation of judicial
authority, and it must be vacated.
4. Referral to the Probate and Family Court. Although the
order appointing the parent coordinator in this case must be
vacated because it exceeds the bounds of the judge's inherent
authority and constitutes, by its terms, an unlawful delegation
of judicial decision-making authority, we recognize the valuable
role that parent coordinators may play in assisting families
involved in the Probate and Family Court system. Consequently,
we refer this matter to the Probate and Family Court to review
and consider the promulgation of a rule governing the
appointment of parent coordinators.
A rule will help to ensure that procedural and substantive
safeguards are in place in any appointment of a parent
coordinator to address issues including the selection of a
parent coordinator, the points in proceedings when parties may
be referred to a parent coordinator, the nature and scope of the
authority that may be granted to a parent coordinator, and
issues related to the apportionment and payment of the parent
coordinator's fees. For example, a list of approved providers
should be maintained and appointments distributed fairly
therefrom in order to address the concerns regarding favoritism
31
in fee-generating appointments set forth in S.J.C. Rule 1:07, as
amended, 431 Mass. 1301 (2000). Further, a judge may not
require the parties to use the services of the parent
coordinator if the order would require one or both parents to
pay for the services without his or her consent. Additionally,
even in a case where the parties consent to pay, various
divisions of a parent coordinator's fee may be appropriate
depending on the financial circumstances of each parent or the
posture of the case. However, care should be taken to ensure
that the apportionment of fees does not give rise to the
appearance of bias by the parent coordinator or give rise to
problematic incentives of the parties.
Additionally, a rule could assist in delineating the scope
of authority that may be delegated to a parent coordinator
without constituting an unlawful delegation of judicial
authority. For example, we have held that in some circumstances
the delegation of certain judicial tasks to quasi judicial
officers or third-party neutrals is permissible. See Gustin,
420 Mass. at 857-858 (judge could, in his discretion, require
parties to submit dispute over property division to court-
appointed intermediary to find facts and make recommendations
provided that intermediary was not authorized to make binding
decisions without consent of parties); Jones v. Jones, 349 Mass.
259, 264 (1965) (judge may delegate fact-finding functions to
32
guardian ad litem and consider recommendations contained in
reports, provided judge retains ultimate responsibility to make
custody decision). Additionally, many jurisdictions that
authorize the appointment of parent coordinators by statute or
court rule expressly restrict the range of the parent
coordinator's decision-making authority. See, e.g., Fla. Stat.
§ 61.125(1) (2009) (with prior approval of parents and court,
parenting coordinator may be authorized to make limited
decisions within scope of court's order of referral); La. Rev.
Stat. Ann. § 9:358.4(C) (2007) (parenting coordinator may not
issue decisions but may submit recommendations in report to
judge for final determination of disputes); N.C. Gen. Stat.
§ 50-92(b) (2005) ("court may authorize a parenting coordinator
to decide issues regarding the implementation of the parenting
plan that are not specifically governed by court order"); Okla.
Stat. Ann. tit. 43, § 120.3 (West 2003) ("The appointment of a
parenting coordinator shall not divest the court of its
exclusive jurisdiction to determine fundamental issues of
custody, visitation, and support, and the authority to exercise
management and control of the case"); S.D. Codified Laws § 25-4-
70 (2013) ("A parenting coordinator shall not have the authority
to make any decision affecting child support, a change of
custody, or a substantial change in parenting time"); Tex. Fam.
33
Code Ann. § 153.606(c) (West 2009) ("The parenting coordinator
may not modify any order, judgment, or decree").
Further, the Probate and Family Court may wish to consider
other issues such as the training, licensing, or monitoring of
parent coordinators, whether and how parents may file complaints
or seek removal of parent coordinators, confidentiality
policies, impartiality, and case screening procedures. In so
doing, the Probate and Family Court may wish to draw on S.J.C.
Rule 1:18 in crafting a rule governing parent coordinators as
S.J.C. Rule 1:18 reflects many important limitations on the
authority of individuals who play a role in assisting litigating
parties in resolving their disputes out of court. The court may
also wish to consider whether to propose an amendment to S.J.C.
Rule 1:18 recognizing parent coordination as a form of dispute
resolution services that may be covered by the rule.
Ultimately, the Probate and Family Court should be guided by the
boundaries on a judge's inherent authority referenced in this
opinion.
We further acknowledge that parent coordination services
are being used with increasing frequency in Massachusetts and
that such services may provide an important benefit to families
and to the court system. Therefore, nothing in this decision
should be construed to limit the ability of parties to agree to
use the services of a parent coordinator or for a judge to
34
incorporate that agreement into a judgment of divorce or to
otherwise enforce the agreement using contract principles.
5. Conclusion. The terms of the appointment of the parent
coordinator in this case exceed the bounds of the judge's
inherent authority, and the breadth of the order constitutes an
impermissible delegation of judicial decision-making authority.
Accordingly, we vacate the original order of appointment, the
clarified order, and the portion of the judgment issued
requiring the parties to comply with the order.
So ordered.