WILLIAM J. BOWER vs. MICHELLE A. BOURNAY-BOWER.
SJC-11534
Supreme Judicial Court of Massachusetts
September 15, 2014
469 Mass. 690 (2014)
Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.
Norfolk. May 8, 2014. - September 15, 2014.
This court concluded that a judge in the Probate and Family Court has the inherent authority to appoint a parent coordinator to 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 [698-700]; however, in the circumstances of this case, a Probate and Family Court judge, in exercising this inherent judicial authority, undermined the constitutional rights from which that power arose by compelling one of the parties to submit to the binding decision-making authority of a parent coordinator without that party‘s consent [700-702], infringing on that party‘s right to have the merits of a pending contempt complaint screened by a judge before referral to the parent coordinator [702], placing a prior restraint on the parents’ ability to file future claims related to custody or visitation in court [702-703], and potentially impeding judicial review of the parent coordinator‘s binding decisions [704-705].
In a divorce action, a Probate and Family Court judge‘s order appointing a parent coordinator improperly delegated to the parent coordinator judicial authority, where nothing in the order prevented the parent coordinator from making structural changes to the parties’ custody arrangement without regard to the statutory standards that govern modification of final divorce judgments. [705-707]
This court referred this matter to the Probate and Family Court to review and consider the promulgation of a rule governing the appointment of parent coordinators. [707-709]
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.
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 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 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
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 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 parties’ current and
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.
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
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 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.,
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); 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 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 admin-
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 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,
Although a parent coordinator may be qualified to provide many of the services contemplated by S.J.C. Rule 1:18, or
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 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.”
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 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 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
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 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 . . .“). There-
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 protections, art. 11 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
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
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
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, 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
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 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
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.”
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
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 in fee-generating appointments set forth in S.J.C. Rule 1:07, as amended, 431 Mass. 1151 (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 de-
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 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.,
Further, the Probate and Family Court may wish to consider other issues such as the training, licensing, or monitoring of
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 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.