Like most people, I spent a considerable amount of time at home working remotely during the COVID-19 pandemic. This offered me the rare opportunity to have more leisure time to watch livestream court hearings across the state. It was eye opening to see how our judiciary works and the different ways attorneys practice before the courts. It was also quite entertaining. So much so, that my husband took an interest in watching the hearings despite not being a lawyer.
One day, he came to me with stunned disbelief at a hearing he was watching. The hearing had been going on for about two hours with three very skilled family law attorneys. And, what these attorneys, parties, and judge were doing for two hours was listening to arguments for and against such issues as whether the daughter can color her hair a bright red, which bus route the child should take to school, whether the father can have an extra day of vacation due to having to drive to his vacation spot versus flying, whether an iPad is a variable cost and if so must the iPad follow the child between the two homes, and whether the father violated the mother’s “exclusive use” of the residence by going into the garage with the son to retrieve the son’s hockey equipment. If you are a family law attorney, you have dealt with similar issues in your cases. What stunned my husband was that the judge had to decide these types of issues when there are so many people waiting to have their time in front of the court on far more important matters. He astutely asked, “Isn’t there a better way?” There is. Yet, few people and attorneys are aware of it.
A parent coordinator is a professional, usually an experienced family law attorney or a mental health counselor trained in conflict resolution and child development, who issues binding decisions on many types of disputes between parents after the conclusion of a family court proceeding. The use of parent coordinators has grown significantly in recent years with more than 20 states now having enacted related statutes or rules.1 The parent coordinator can decide many types of disputes between parents including, but not limited to, school choice, vaccines, medical procedures, variable costs, changes to the placement schedule, transportation responsibilities, placement exchange locations, travel, the child’s introduction to or contact with a parent’s significant other or family members who may pose a risk, and participation in extracurricular activities. The decisions could involve a range from the very significant, such as whether a child will attend specific religious services, to the relatively less significant, such as whether the child can eat fast food.
Advantage of Using Parent Coordinators
A parent coordinator can greatly assist parents in “high-conflict” relationships by deciding disputes quickly, providing a structure for disputes when they arise, encouraging and suggesting ways for better communication between the parents to reduce fighting between the parents and, when appropriate, ensuring that each parent has a consistent, secure, and stable relationship with the child long after the family court proceedings have concluded, all for a fraction of what it would cost to litigate these same issues.
The parent coordinator process is far more accessible to parents than the court system. For instance, consider parents who have a dispute about whether the father can add one day to his vacation with the child because of the desire to travel by car versus by plane. To seek a judicial remedy, he would need to file a motion to modify the judgment to allow him additional placement time. This would involve, most often, hiring a lawyer, meeting with the lawyer, drafting of the motion, service of the motion, gathering the evidence, and then the presentation of the case in front of a court commissioner, whose decision is subject to a de novo hearing in front of the assigned judge on the case. This is a laborious process regarding what some people may construe as a relatively minor parenting dispute but nonetheless one that is important to that father.
In contrast, a parent coordinator could address the variable-cost issue by simply asking each parent to send an email with that parent’s position on the issue. The parent coordinator’s decision could involve less than an hour of time at a cost that is shared equally by the parents. A decision could be made within two or three days, instead of waiting weeks for a hearing in front of the court commissioner. The parent coordinator’s decision typically will be sufficient to resolve the issue, but if for some reason, one of the parents refuses to abide by the decision, the prevailing party can file the parent coordinator’s decision with the court to confirm it as an arbitrated award, which then will have the same enforcement of a court order.
Benefits for Attorneys. As a family law attorney, you may question why you would want to give away work to a parent coordinator when you could represent clients in these issues. It is a reasonable and legitimate concern. A family law attorney is also quick to realize that most of these issues reflect the relationship and emotional dynamics of the parents rather than any profound legal analysis or argument. The attorney must channel all the client’s emotions into a discernable and credible legal argument over what is essentially a parenting decision. This is no small feat and with little reward at the end. It is a common refrain among family law attorneys that 20 percent of their clients consume about 80 percent of their time. The parent coordinator alleviates much of this stress and time of the attorney while, more important, offering the client, in effect, the benefit of a “private judge” who will not only decide the issues but attempt to work with the parents toward a resolution.
Benefits for Judges. Similarly, judges might embrace the use of parent coordinators. The legal system is not intended to be a substitute for parenting or to act as a parent by proxy. Consider, for example, the formality of the rules of evidence, the relatively short time that the judge has with the parties, and the fact that the judge is in the difficult position of either granting a party impasse-decision-making authority or making a specific parenting decision that is based more on the judge’s own personal beliefs versus any legal guidance. In the end, the judge tries to do the best possible with the evidence, time, and little guidance the law provides to resolve these disputes.
A parent coordinator has fewer formal requirements, is not constrained by the rules of evidence, could meet with the child and speak to other professionals such as teachers and therapists, and could engage in informal mediation with the parents before having to make a decision. The judiciary should embrace this resource for assisting parents in high-conflict relationships, which would reduce the amount of litigation and judicial resources dedicated to deciding parenting disputes.
Downsides of Using Parent Coordinators
Not everyone is on the bandwagon for the use of parent coordinators. First, and foremost, there are due-process concerns for the parents. A parent’s right in the care, custody, and control of their child is a fundamental right under the U.S. Constitution.2 A judge is not allowed to impermissibly delegate the court’s inherent Article III judicial authority to a third party.3 The analysis turns on whether these types of parenting decisions are reserved only for the judiciary or can be delegated to a third party so long as there is some form of judicial review.
Forty years ago, the Wisconsin Court of Appeals held in Biel v. Biel that a trial court could not delegate its judicial authority to decide a child’s custody and placement award to a third-party social worker.4 The court of appeals reversed the trial court’s order that required the parties to attend arbitration with a social worker. The Biel decision remains good law and was more recently cited in an unpublished decision that can be cited for persuasive authority.
In Pappathopoulous v. Pappathopoulous, the parents had agreed to the use of a parent coordinator for one year after their divorce. At the end of that one year, the parties continued to have conflict and disputes regarding the parenting of their child, so the circuit court ordered them to return to the parent coordinator to resolve any future parenting disputes. The father objected to the continued use of the parent coordinator and appealed the circuit court’s decision as an impermissible delegation of authority. The court of appeals agreed with the father and reversed the circuit court’s decision on the basis that it was an impermissible delegation of authority.5
The legal analysis is different, however, if the parents agree or stipulate to the use of a parent coordinator. In the Pappathopoulos decision, the court did not address or disturb the original one-year appointment of the parent coordinator that the parents agreed upon.
The parent coordinator process is far more accessible to
parents than the court system.
The key distinction in the case law is that a court may adopt and incorporate the parties’ agreement to use a parent coordinator but lacks the authority to require the parents to work with a parent coordinator absent that agreement.6 In Lawrence v. Lawrence, the court of appeals upheld the parent’s agreement to rely on a guardian ad litem and social worker to decide the child’s school if the parents reached an impasse. The court reasoned parents can agree to use third parties to decide issues involving the children and have impasse-decision-making authority on particular topics so long as the decisions do not deprive the court of its inherent judicial authority to decide legal custody. The court recognized the strong public policy in favor of encouraging settlement of divorce cases and, when children are involved, the benefit from private resolution of disputes by their parents and the benefit of protecting children from litigation.7
In short, courts run into issues if they attempt to delegate custodial authority to a third party to decide absent the parties’ agreement to that delegation of authority. Generally, parties to a divorce action can stipulate to provisions in a divorce order even though the court itself could not order the same provision without their agreement (for example, non-modifiable maintenance payments, mandatory savings for adult children’s college funds, and so on). Similarly, if the parents want to avoid future litigation related to their children, the parents can agree to the use of a parent coordinator.8
The extent and scope of what can be decided by a parent coordinator requires further guidance from future case law or legislation. It seems clear that a parent coordinator can make decisions related to the child on some types of topics, but whether a parent coordinator can decide issues of substantial modifications in placement and the award of legal custody depends on whether the courts and parties view use of a parent coordinator as a form of arbitration.9
The courts have a strong public policy in favor of alternative dispute resolution in family law cases by recognizing that children benefit when the parents privately resolve their disputes with less litigation.10 Wisconsin enacted legislation that specifically authorizes arbitration in family law matters and, more specifically, the custody and placement of children.11
A court may adopt and incorporate the parties’ agreement
to use a parent coordinator but lacks the authority to
require the parents to work with a parent coordinator
absent that agreement.
There is another mechanism that has been relied on as statutory authority for the use of a parent coordinator beyond arbitration. A court can appoint a referee or special master to assist the court in decisions. In Rose v. Rose, an unpublished decision that can be cited for persuasive authority, the Wisconsin Court of Appeals upheld the circuit court’s adoption of a stipulated order for the use of a referee to decide postjudgment parenting issues.12 In many ways, the referee was acting similarly to a parent coordinator but without the title. It was not until the referee made a decision that the father believed was not in the child’s best interests that the father challenged the use of a referee in the context of custody and placement disputes.
The court of appeals rejected the father’s arguments and somewhat embraced the idea of using a referee to resolve these types of parenting disputes. The court could not find any statute or case that prohibited parties from agreeing to use a referee to resolve future placement disputes.13 “Essentially with the parties’ approval, the court appointed a referee to decide any future placement disputes, and §§ 767.201 and 805.06 gave the court the authority to do so.”14 The court also mentioned the parties’ option to choose to arbitrate their parenting disputes as another basis for a third party to decide issues related to custody and placement.15
Current Status of Parent Coordinators
So where does this leave us? There are two unpublished decisions that take somewhat different views on the merits of relying on the referee statute as a basis for the use of parent coordinators. There is a public policy in favor of reducing litigation and promoting alternative dispute resolution in custody and placement disputes.16 There is a growing reliance on and use of arbitration and parent coordinators throughout the United States.17 But at the same time, parents do have a liberty interest in the care, custody, and upbringing of their children, and courts cannot infringe that right by delegating authority to third parties and thereby abrogating their judicial authority.18
There is no definitive published case or statute that explicitly endorses or prohibits the use of the professional known as “parent coordinator.” Wisconsin has yet to even define exactly the role of a parent coordinator. Is the person an arbitrator? Is the person a referee? Or is it a distinct role that the parents’ agreement authorizes and that the court is authorized to adopt under its equitable or statutory authority to “do all acts and things necessary and proper?”19
In this author’s opinion, the parent coordinator is a hybrid of an arbitrator, who can issue binding decisions, and a referee, whose decisions require judicial review. The parent coordinator role seems to best be described as a new alternative dispute resolution mechanism that cannot be ordered by the court on its own initiative but can be adopted as a court order if agreed upon by the parties.20
Elements of a Stipulated Parent Coordinator Order
The following are key elements or conditions of a parent coordinator’s role that, if included in a stipulated parent coordinator order, can provide some assurance to attorneys and parents that the order will be upheld if challenged later by a parent.
The use of a parent coordinator should be agreed upon by both parties and by the guardian ad litem, if any.
A more conservative approach to a parent coordinator’s role would be to limit the parent coordinator’s decision-making to topics involving parenting decisions. If the parents nonetheless wish to give the parent coordinator the authority to change an award of legal custody or substantially modify the placement order, the parent coordinator should abide by the arbitration requirements set forth in Wis. Stat. section 802.12(3)(d).
Any decision by the parent coordinator should be subject to de novo review by the circuit court unless it is specifically agreed that the parent coordinator is acting as an arbitrator per Wis. Stat. chapter 788.
The parent coordinator should make decisions based on the applicable legal standards for the issue being decided. For example, a modification in custody or placement schedule should be based on the legal standards set forth in Wis. Stat. section 767.451.21
The use of a parent coordinator seems best suited for postjudgment issues and not during the family court proceeding. The best use of a parent coordinator is to reduce the litigation after the court has issued a decision on custody and placement of the child or children.
The stipulated order appointing a parent coordinator should specify the term of the parent coordinator’s appointment. Generally, the appointment is for one to three years after the divorce. The first few years after the divorce is also when the emotions of the parents may still be extraordinarily strong, and they need someone to help navigate them though the new duties and responsibilities of co-parenting.22
A Call for Action
Nationwide there is a growing interest and reliance on the use of alternative dispute resolution in family law matters, including parent coordinators. Other states have enacted legislation specific to the role, responsibilities, limitations, and qualifications to be a parent coordinator.23 The Association of Family and Conciliation Courts has issued a set of excellent guidelines for parent coordination that include issues related to competence, confidentiality, impartiality, and specifying roles and functions.24 Wisconsin family law attorneys need clear guidance from the legislature and the courts of how best to use this new alternative dispute resolution, which will benefit their clients and their clients’ children by reducing further litigation in their lives.
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Where is your favorite place to go after winning a case?
In my imagination, my favorite place to go is accepting an award for “Best Performance in the Courtroom for a Client.” All my peers and friends are there applauding me as I graciously and humbly thank those who supported me.
In reality, I usually go to happy hour at Rare Steakhouse on the Capitol Square. You can’t beat their happy hour specials and, for me, it’s like Cheers where everyone knows my name. They may know me not necessarily because I am winning a lot of cases. Coincidentally, Rare Steakhouse is also my favorite place to go after losing a case as well!
Christopher S. Krimmer, Forward Legal Services LLC, Madison.
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1 Milfred D. Dale, Dolores Bomrad & Alexander Jones, Parenting Coordination Law in the U.S. and Canada: A Review of the Sources and Scope of the PC’s Authority , 58 Fam. Ct. Rev. 673 (July 2020).
2 Pierce v. Society of Sisters, 268 U.S. 510 (1925); Stanley v. Illinois, 405 U.S. 645 (1972); Wisconsin v. Yoder, 406 U.S. 205 (1972).
3 Biel v. Biel, 114 Wis. 2d 191, 194, 336 N.W.2d 404 (Ct. App. 1983) (“When ordering arbitration of custody and visitation by a social worker, the trial court delegated its non-delegable duties. The arbitration order was not a proper exercise of authority under sec. 767.01. Stats.”)
5 Pappathopoulos v. Pappathopoulos, No. 2017AP399, 2018 WL 3089880 (Wis. Ct. App. June 21, 2018) (unpublished opinion citable for persuasive value per Wis. Stat. § 809.23(3)(b)).
6 Compare id. with Lawrence v. Lawrence, 2004 WI App 170, 276 Wis. 2d 403, 687 N.W.2d 748.
7 Lawrence, 2004 WI App 170, ¶ 21, 276 Wis. 2d 403.
8 Rintelman v. Rintelman, 18 Wis. 2d 587, 594-96, 348 N.W.2d 498 (1984).
9 See Lawrence , 2004 WI App 170, ¶ 16, 276 Wis. 2d 403.
10 Id. ¶ 21.
11 Wis. Stat. § 802.12(3)(d).
12 Rose v. Rose, Nos. 2015AP2646, 2016AP692, 2016 WL 7437759 (Wis. Ct. App. Dec. 21, 2016) (unpublished opinion citable for persuasive value per Wis. Stat. § 809.23(3)(b)).
13 Id. ¶ 31.
14 Id. ¶ 23.
15 Id. ¶ 28.
16 Lawrence, 2004 WI App 170, ¶ 21, 276 Wis. 2d 403.
17 Dale et al., supra note 1.
18 See cases cited in note 2, supra.
19 Wis. Stat. § 767.01(1); Rose, 2016 WL 7437759, ¶ 13 (reference to potential equitable authority for use of referee).
20 See Lawrence, 2004 WI App 170, ¶ 21, 276 Wis. 2d 403.
21 See Herrell v. Herrell, 144 Wis. 2d 479, 424 N.W.2d 403 (1988).
22 Dale et al., supra note 1 (significant numbers of parents remain in conflict two to three years after divorce).
23 Id. (21 states and two Canadian provinces have parenting coordination statutes or rules regarding appointments of parent coordinators, but many parent coordinators function without specific court rule or statutory authority.).
24 AFCC Task Force on Parenting Coordination, Guidelines for Parent Coordination, Ass’n of Fam. & Conciliation Cts. (2017-2019).
» Cite this article: 95 Wis. Law. 42-46 (January 2022).