“Cut Backs in Court Services Create Alternate Forms of Dispute Resolution in High Conflict Families”

Due to the sequestration, there will be seven separate furlough days where the courts will not be operating or will be operating well under staff between now and September, 2013. Also, there are significant layoffs in office staff due to lack of funding and due to the fact that the funding is going towards paying high pensions for people who no longer work for the courts due to their retirement.

As a result, there is very little time for the courts to address issues that arise daily especially in a high conflict family situation. Accordingly, an effective dispute resolution method that is being deployed outside of the courts is a method known as Parenting Coordination. Pursuant to Stipulation or court order, a parenting coordinator, who is a mental health professional, is employed to assist high conflict of parties in making decisions regarding daily events that come up in a child’s development.

Conflict over such daily issues as a child’s extracurricular activities, adjustments in the custodial schedule, elective medical treatment and other similar issues which high conflict parents can never agree on is presented to the parenting coordinator in an informal setting and, pursuant to stipulation, the parenting coordinator has the power and the ability to make these types of daily decisions which the parents agree to be bound by. Such issues can be handled and resolved within days or weeks as opposed to months or years that it now takes for such issues to be resolved in the courtroom.

The parenting coordinator has a greater ability to gather relevant information that is needed to make the decision for the high conflict parents. For example, if one parent thinks the child is in need of braces and the other parent doesn’t think it’s necessary, the parenting coordinator is able to call the orthodontist, gather all of the information and make an independent decision that is in the best interests of the child. If this were to be presented to a judge, a subpoena would need to be issued to the orthodontist, court time would need to be set aside to have the orthodontist to come in to testify and the court would then need to make a decision based upon the admissible evidence before it. It is far simpler for the parenting coordinator to simply pick up the phone and gather the information without the need of testimony including cross-examination.

A criticism of this type of delegation of judicial duty is that the parenting coordinator is not a judge who is elected by the people or appointed by the governor, has no legal background and is not familiar with what is required to uphold an individual’s personal rights and freedoms that are under the Constitution. Therefore, although the parenting coordinator can be quite effective in minimizing the trauma that high conflict parents impose upon the child, there is a question whether it passes constitutional muster.

John J. Gilligan, partner of Brandmeyer Gilligan & Dockstader, LLP, has extensive experience specializing in California family law, and estate planning. Mr. Gilligan is certified by the State Bar of California, as a certified family law specialist since 1997.

 

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