It Should Be PC to Use a PC

Posted: November 29th, 2016 by

Although parent coordinators (PCs) are currently defunct in Pennsylvania, the Domestic Relations Procedural Rules Committee of the Pennsylvania Supreme Court is seeking to bring back PCs in custody cases. The comment period for Recommendation 155 is open until Feb. 24, 2017. Merriam-Webster defines “coordination” as the process of organizing people or groups so that they work together properly and well. But coordination can be an insurmountable task if the people you are trying to get to “work together properly and well” are separated parents, hence the need for a PC. PCs are attorneys or mental health professionals who have extensive experience in handling high-conflict custody cases and have received mediation training. A PC’s role is to assist parents involved in high-conflict custody cases with everyday issues that can be resolved without judicial assistance and to educate and train them to resolve high-conflict issues on their own.

Examples of these issues are whether a child should participate in township soccer versus a private soccer club or whether there should be a temporary change in the schedule for the child to attend a special event with the noncustodial parent. PCs neither decide major legal custody issues, such as whether legal custody is shared or rests with one parent, nor do they decide permanent physical custody issues, such as relocation. PCs are either hired by agreement of the parties or appointed by the court, generally earning less as a PC than in their traditional roles. If necessary, their conflict resolution role could include making recommendations to the court that either the judge approves or sets aside.

So why did Pennsylvania do away with the use of PCs in the first place since it is now trying to revive them? It is important to look at the history for a better understanding. When PCs were first introduced in Pennsylvania in 2008, both clients and attorneys seemed quite pleased with their effectiveness in dealing with bickering over day-to-day issues. PCs were explicitly approved in the Superior Court case of Yates v. Yates, 963 A.2d 535 (Pa. Super. 2008), which upheld the trial court’s decision to issue an order appointing a local attorney to serve as a PC in a high conflict custody case because the PC’s scope of assisting the parties in resolving ancillary custody disputes was clearly defined.

But after Yates, some PCs began issuing recommendations beyond their authority instead of serving to assist and educate parents on how to resolve high conflict issues based on the premise that the parents were never going to be able to accomplish the task themselves. In one of my cases, the conflict was so intense between the parties that the PC, by recommendation, assigned one parent sole legal custody to make certain educational and health decisions “because the parents were never going to agree anyway.” Custody orders were essentially being modified without agreement of the parties and without an evidentiary hearing or the opportunity to consult with counsel, which many parents did not realize was not only a violation of the PC’s authority, but of their individual rights.

In 2013, faced with PCs who were self-modifying custody orders and agreements as part of their coordination role, the legislature enacted Pa.R.C.P. 1915.11-1, which eliminated PCs by stating that only judges can make decisions in child custody cases. The legislature took things one step further by vacating all orders appointing PCs on the date the rule went into effect, May 23, 2013.

Recommendation 155 proposes that a PC may be appointed by the court after a final custody order has been entered to resolve immediate parenting issues in cases involving frequent recurring conflict that would either be moot by the time a petition is listed for hearing or are not issues worthy of the court’s time (e.g., summer camp issues, a child’s after-school activities). The appointment of a PC would be for a specified period of time, not to exceed one year, with either party being permitted to petition for an extension of time of the PC’s involvement. The recommendation further clarifies the qualifications of the PC, the scope of his or her authority, only permits the coordinator to speak to ancillary third parties or the children with the consent of both parents, specifies that communications between the parties or their attorneys and the PC are not confidential and that neither party can compel the testimony of the PC without an order of court. Most importantly, the proposed rule specifies a procedure for PCs to follow when they are giving a recommendation, the procedure for objecting to it and requiring that the court hold a record hearing de novo on any objection to the PC’s recommendation. The proposed rule also specifies how the PC is to be paid and provides a form order, proposed Rule 1915.22, for appointing PCs.

As a family law practitioner, it has been difficult not having the invaluable services of a PC to spare the agony of negotiating the minutia of day-to-day parenting issues. It is also a disservice to clients to have to pay an attorney’s rate instead of the lower rate of a PC to negotiate a resolution. Everyone knows there is no rule book when it comes to parenting intact families let alone separated ones. Reinstating PCs limited to providing guidance and assistance in educating parents on how to resolve high conflict custody cases on their own is the right step toward reduced conflict. Recommendation 155 is comprehensive and instructive to the court, counsel and PCs and will hopefully be approved in early 2017.

Reprinted with permission from the NOVEMBER 29, 2016 issue of THE LEGAL INTELLIGENCER (online). © 2016 ALM Media Properties, LLC. Further duplication without permission is prohibited. All Rights Reserved.

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